Senate Passes Infrastructure Bill

This morning the Senate passed the Infrastructure Investment and Jobs Act (the infrastructure bill) by a vote of 69-30.  The bill will now go to the House.  Below is a summary (mostly lightly edited excerpts) of some of the broadband portions of the bill, but by no means is this comprehensive:

Broadband Grants

The bill establishes a $42,450,000,000 NTIA-administered grant program intended to provide grants to States who in turn award subgrants for broadband projects.  Of those funds, there is a 10 percent set aside for high-cost areas based on the proportion of unserved locations in high cost areas in the state compared to those in all states, and with at least $100,000,000 going to each state and $100,000,000 divided equally among the US Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.  The remaining amount is allocated to states based on the proportion of unserved areas in the state relative to the unserved areas in all states.  States must apply for funding, but if a State (an “eligible entity”) fails to submit a covered application by the applicable deadline, or a covered application submitted by an eligible entity is not approved by the applicable deadline, a political subdivision or consortium of political subdivisions of the eligible entity may submit the applicable type of covered application in place of the eligible entity.

An ‘‘unserved location’’ means a broadband-serviceable location, as determined in accordance with the broadband DATA maps, that— (i) has no access to broadband service; or (ii) lacks access to reliable broadband service offered with—(I) a speed of not less than (aa) 25 megabits per second 3 for downloads; and (bb) 3 megabits per second for uploads; and (II) a latency sufficient to support real-time, interactive applications.

An ‘‘underserved location’’ means a location— (i) that is not an unserved location; and (ii) as determined in accordance with the broadband DATA maps, lacks access to reliable broadband service offered with— (I) a speed of not less than (aa) 100 megabits per second for downloads; and (bb) 20 megabits per second for uploads; and (II) a latency sufficient to support real-time, interactive applications.

The term ‘‘high cost area’’ means an unserved area in which the cost of building out broadband service is higher, as compared with the average cost of building out broadband service in unserved areas in the United States (as determined by the Assistant Secretary, in consultation with the Commission), incorporating factors that include— (I) the remote location of the area; (II) the lack of population density of the area; (III) the unique topography of the area; (IV) a high rate of poverty in the area; or (V) any other factor identified by the Assistant Secretary, in consultation with the Commission, that contributes to the higher cost of deploying broadband service in the area. For purposes of this definition, the term ‘‘unserved area’’ means an area in which not less than 80 percent of broadband-serviceable locations are unserved locations.

An eligible entity may use grant funds received under this section to competitively award subgrants for—

(1) unserved service projects and underserved service projects;

(2) connecting eligible community anchor institutions;

(3) data collection, broadband mapping, and planning;

(4) installing internet and Wi-Fi infrastructure or providing reduced-cost broadband within a multi-family residential building, with priority given to a residential building that—

(A) has a substantial share of unserved households; or

(B) is in a location in which the percentage of individuals with a household income that is at or below 150 percent of the poverty line applicable to a family of the size involved (as determined under section 673(2) of the Community Services Block Grant Act (42 U.S.C. 11 9902(2)) is higher than the national percentage of such individuals;

(5) broadband adoption, including programs to provide affordable internet-capable devices; and

(6) any use determined necessary by the Assistant Secretary to facilitate the goals of the Program.

States shall award funding in a manner that—

• prioritizes unserved service projects;
• after certifying to the Assistant Secretary that the eligible entity will ensure coverage of broadband service to all unserved locations within the eligible entity, prioritizes underserved service projects; and
• after prioritizing underserved service projects, provides funding to connect eligible community anchor institutions;

In providing funding under subclauses (I), (II), and (III) of clause (i), states shall prioritize funding for deployment of broadband infrastructure for priority broadband projects. 

States may not exclude cooperatives, nonprofit organizations, public-private partnerships, private companies, public or private utilities, public utility districts, or local governments from eligibility for such grant funds.  States must give priority to projects based on—

• deployment of a broadband network to persistent poverty counties or high-poverty areas;
• the speeds of the proposed broadband service;
• the expediency with which a project can be completed; and
• a demonstrated record of and plans to be in compliance with Federal labor and employment laws.

The Assistant Secretary may provide additional guidance on the prioritization of subgrants awarded for the deployment of a broadband network using grant funds received under this section.

There is a challenge process under which a unit of local government, nonprofit organization, or other broadband service provider can challenge a determination made by the eligible entity in the initial proposal as to whether a particular location or community anchor institution within the jurisdiction of the eligible entity is eligible for the grant funds, including whether a particular location is unserved or underserved.  The Assistant Secretary of NTIA may modify the state’s challenge process and may reverse a state’s determination with respect to eligibility.

Except in high-cost areas or as otherwise provided by this Act, the state shall provide, or require a subgrantee to provide, a match from non-federal funds of not less than 25 percent of project costs.  The Assistant Secretary may reduce or waive the match requirement.  Matches may be in-kind and may be from funds allocated through the Families First Coronavirus Response Act, CARES Act,  or ARPA or any amendments to those laws.

An entity that receives a subgrant under subsection for the deployment of a broadband network must, among other things,

(A) in providing broadband service using the network—

(i) shall provide broadband service (I) at a speed of not less than 100 megabits per second for downloads and 20 megabits per second for uploads; (II) with a latency that is sufficiently low to allow reasonably foreseeable, real-time, interactive applications; and (III) with network outages that do not exceed, on average, 48 hours over any 365-day period; and

(ii) shall provide access to broadband service to each customer served by the project that desires broadband service;

(B) shall offer not less than 1 low-cost broadband service option for eligible subscribers. Eligible entities will propose definitions of “low-cost broadband service option” for approval of the Assistant Secretary.

Mapping

A broadband provider shall provide the Commission with any information, in the format, type, or specification requested by the Commission, necessary to augment the collection of data by the Commission under title VIII of the Communications Act of 19 1934 (47 U.S.C. 641 et seq.); or (2) the Form 477 data collection program.  The maps will be available on a public website.

USF Provisions

Not later than 30 days after the date of enactment of this Act, the Commission shall commence a proceeding to evaluate the implications of this Act and the amendments made by this Act on how the Commission should achieve the universal service goals for broadband.  Not later than 270 days after the date of enactment of this Act, the Commission shall submit to Congress a report on the options of the Commission for improving its effectiveness in achieving the universal service goals for broadband in light of this Act and the amendments made by this Act, and other legislation that addresses those goals.  In the report, the Commission may make recommendations for Congress on further actions the Commission and Congress could take to improve the ability of the Commission to achieve the universal service goals for broadband.

Digital Equity Act

Creates two new grant programs:  The State Digital Equity Capacity Grant Program and the Digital Equity Competitive Grant Program.  Both programs will be run by NTIA.

The purpose of the Capacity Grant Program, which has funding of $240 million for fiscal year 2022 and $300 million for each of fiscal years 2023 through 2026, is to promote the achievement of digital equity, support digital inclusion activities, and build capacity for efforts by states relating to the adoption of broadband by residents of those states.  States must apply for funds, which may be administered by the state, political subdivisions or a range of non-profits or other organizations.  The administering entity will award subgrants for (i) the State Digital Equity Plan; and (ii) digital inclusion activities in the state generally.  To be eligible, the state must develop a State Digital Equity Plan and the bill includes $60 million in funding for Planning Grants to support this effort.  Capacity Grants are allocated as follows: (I) 50 percent of the total grant amount shall be based on the population of the eligible state in proportion to the total population of all eligible states; (II) 25 percent based on the number of individuals in the eligible state who are members of covered populations in proportion to the total number of individuals in all eligible states who are members of covered populations; (III) 25 percent based on the comparative lack of availability and adoption of broadband in the eligible state in proportion to the lack of availability and adoption of broadband of all eligible States (more detail in the bill on how this is to be determined).  States have 5 years to use the grant funds.

The Digital Equity Competitive Grant Program is intended to award grants to support efforts to achieve digital equity, promote digital inclusion activities, and spur greater adoption of broadband among covered populations.  The bill allocates $250 million per year for five years.  Eligible entities include political subdivisions, state agencies and a range of non-profits and other organizations, but to be eligible the entity cannot be serving, and cannot have served, as the administering entity for a state for the Capacity Grant Program.  Eligible entities must apply to NTIA for grant funding, who will consider (A) whether an application shall, if approved—(i) increase internet access and the adoption of broadband among covered populations to be served by the applicant; and (ii) not result in unjust enrichment; (B) the comparative geographic diversity of the application in relation to other eligible applications; and (C) the extent to which an application may duplicate or conflict with another program.  The funds must be used for at least one of the following: 

• To develop and implement digital inclusion activities that benefit covered populations.
• To facilitate the adoption of broadband by covered populations in order to provide educational and employment opportunities to those populations.
• To implement, consistent with the purposes of this title—

1. training programs for covered populations that cover basic, advanced, and applied skills; or
2. other workforce development programs.

• To make available equipment, instrumentation, networking capability, hardware and software, or digital network technology for broadband services to covered populations at low or no cost.
• To construct, upgrade, expend, or operate new or existing public access computing centers for covered populations through community anchor institutions.
• To undertake any other project and activity that the Assistant Secretary finds to be consistent with the purposes for which the Program is established.

Entities will have four years to expend the grant funds.  The Federal share of any project may not exceed 90 percent unless NTIA grants a waiver of this limit.

For purposes of both Programs, ‘‘covered populations’’ means:

(A) individuals who live in covered households (a household, the income of which for the most recently completed year is not more than 150 percent of an amount equal to the poverty level, as determined by using criteria of poverty established by the Bureau of the Census);

(B) aging individuals;

(C) incarcerated individuals, other than individuals who are incarcerated in a Federal correctional facility;

(D) veterans;

(E) individuals with disabilities;

(F) individuals with a language barrier, including individuals who (i) are English learners; and (ii) have low levels of literacy;

(G) individuals who are members of a racial or ethnic minority group; and

(H) individuals who primarily reside in a rural area.

Middle Mile Infrastructure

Establishes a $1 billion NTIA-administered grant fund to be awarded on a technology-neutral, competitive basis to eligible entities for the construction, improvement, or acquisition of middle mile infrastructure.  ‘‘Middle mile infrastructure’’ (A) means any broadband infrastructure that does not connect directly to an end-user location, including an anchor institution; and (B) includes— (i) leased dark fiber, interoffice transport, backhaul, carrier-neutral internet exchange facilities, carrier-neutral submarine cable landing stations, undersea cables, transport connectivity to data centers, special access transport, and other similar services; and (ii) wired or private wireless broadband infrastructure, including microwave capacity, radio tower access, and other services or infrastructure for a private wireless broadband network, such as towers, fiber, and microwave links. 

Projects shall, among other things: be capable of supporting retail broadband service; ensure that the proposed middle mile broadband network will be capable of providing broadband to an anchor institution at a speed of not less than 1 gig symmetrical; shall offer interconnection in perpetuity, where technically feasible without exceeding current or reasonably anticipated capacity limitations, on reasonable rates and terms to be negotiated with requesting parties. The bill specifies priorities for applications and requires buildout within 5 years (with possible extensions). The amount of a middle mile grant may not exceed 70 percent of the total project cost.

Affordability/Discrimination

The bill extends the Emergency Broadband Benefit program but renames it the Affordable Connectivity Program and makes some changes, including lowering the benefit to $30/month from $50/month.

The bill also requires the FCC, not later than 1 year after the date of enactment of this Act, to promulgate regulations to require the display of broadband consumer labels, as described in the Public Notice of the Commission issued on April 4, 2016 (DA 16–357), to disclose to consumers information regarding broadband internet access service plans, including information regarding whether the offered price is an introductory rate and, if so, the price the consumer will be required to pay following the introductory period.

The bill further requires the FCC, not later than 2 years after the date of enactment of this Act, to adopt final rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including— (1) preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin; and (2) identifying necessary steps for the Commissions to take to eliminate discrimination described in (1). The Commission and the Attorney General shall ensure that Federal policies promote equal access to robust broadband internet access service by prohibiting deployment discrimination based on— (1) the income level of an area; (2) the predominant race or ethnicity composition of an area; or (3) other factors the Commission determines to be relevant based on the findings in the record developed from the rulemaking.  The Commission shall develop model policies and best practices that can be adopted by States and localities to ensure that broadband internet access service providers do not engage in digital discrimination. (The Commission shall revise its public complaint process to accept complaints from consumers or other members of the public that relate to digital discrimination.

Cybersecurity

The bill establishes a Department of Homeland Security-run grant program, with $1 billion in funding over 4 years, to award grants to address cybersecurity risks and cybersecurity threats to information systems owned or operated by, or on behalf of, State, local, or Tribal governments.  “Eligible entities” are states or tribal governments, but states must, not later than 45 days after the date on which an eligible entity or multi-entity group receives a grant, without im12 posing unreasonable or unduly burdensome requirements as a condition of receipt, make available to local governments within the jurisdiction of the eligible entity or the eligible entities that comprise the multi-entity group, (i) not less than 80 percent of funds available under the grant; (ii) with the consent of the local governments, items, services, capabilities, or activities having a value of not less than 80 percent of the amount of the grant; or (iii) with the consent of the local governments, grant funds combined with other items, services, capabilities, or activities having the total value of not less than 80 percent of the amount of the grant.  Rural areas must receive not less than (i) 25 percent of the amount of the grant awarded to the eligible entity; (ii) items, services, capabilities, or activities having a value of not less than 25 percent of the amount of the grant awarded to the eligible entity; or (iii) grant funds combined with other items, services, capabilities, or activities having the total value of not less than 25 percent of the grant awarded to the eligible entity.  If an eligible entity does not make a required distribution to a local government in a timely fashion, the local government may petition the Secretary to request the Secretary to provide funds directly to the local government.

Funds may be used to:

(1) implement the Cybersecurity Plan of the eligible entity;

(2) develop or revise the Cybersecurity Plan of the eligible entity;

(3) pay expenses directly relating to the administration of the grant, which shall not exceed 5 percent of the amount of the grant;

(4) assist with activities that address imminent cybersecurity threats, as confirmed by the Secretary, acting through the Director, to the information systems owned or operated by, or on behalf of, the eligible entity or a local government within the jurisdiction of the eligible entity; or

(5) fund any other appropriate activity determined by the Secretary, acting through the Director.

The bill also establishes a Cyber Response and Recovery Fund to pay for the coordination of response and recovery support for the specific significant incident associated with a declaration of a significant incident to Federal, State, local, and Tribal, entities and public and private entities on a reimbursable or non-reimbursable basis, including through asset response activities and technical assistance; grants for, or cooperative agreements with, Federal, State, local, and Tribal public and private entities to respond to, and recover from, the specific significant incident associated with a declaration. The bill appropriates $20 million for fiscal years 2022-28 for the Fund.

We will keep you updated as the bills moves back to the House.  Please feel free to reach out with any questions.