Selected New Developments in Broadband – Through March 30

OAB FCC Information is courtesy Fletcher, Heald & Hildreth, PLC.

Posted On: Apr 02, 2021

Capitol Hill

President Biden on March 11, 2021 signed a further Coronavirus emergency spending package into law – the American Rescue Plan (ARP) Act ($1.9 trillion). A very high-level summary of the major spending components of the legislation can be found here (courtesy of CTC Technology & Energy) – but the notable highlights include a $10 billion “capital projects” grant fund for states[1] (made available through the Department of Treasury) and $7.1 billion appropriated to the E-rate Program to support broadband to students outside of the classroom (more below on this in the E-rate section). The Treasury Department’s regulations for the capital projects grant fund are due by May 10, 2021.

Attention now shifts to non-emergency infrastructure packages that will include major broadband spending. On the House side, the Democrats introduced HR-1848, the Leading Infrastructure for Tomorrow’s America (LITA) Act (sponsored by Rep. Frank Pallone (D-PA)). On the Senate side, Sen. Amy Klobuchar (D-MN) introduced S-745, the Accessible and Affordable Internet for All (AAIA) Act – which has a companion bill in the House introduced by Rep. James Clyburn (D-SC) (a House Majority Whip summary of this bill is available here). The AAIA is a reintroduction of the Democrats $80 billion broadband funding legislation from last year, but with some notable differences, including the replacement of a reverse auction requirement with a “system of competitive bidding.” Here is the summary of that section from the House Majority Whip:

Authorizes $80 billion to fund competitive bidding systems to build broadband infrastructure. Seventy-five percent of the funding is to be used for a nationwide system of competitive bidding to fund broadband deployment in unserved areas, defined as areas with service below 25/25 Megabits per second (Mbps), and areas with low-tier service, defined as areas with service between 25/25 and 100/100 Mbps. The remaining funds (25 percent) are to be distributed among States, by population with a minimum guarantee for each State, to conduct statewide systems of competitive bidding for broadband deployment in unserved areas, areas with low-tier service, and to unserved anchor institutions (anchor institutions with speeds less than 1 gigabit per 1,000 users). Both the Commission and State must first hold a system of competitive bidding exclusively for bidders offering gigabit symmetrical service.

While there is talk of passing a partisan infrastructure package using the “reconciliation” process[2] (which allows Senate passage with a simple majority), bipartisan alternatives include the $10 billion Eliminate the Digital Divide Act re-introduced on March 23 by Senators Joe Manchin (D-WV) and

John Cornyn (R-TX). Among other things, this legislation would “distribute $10 billion to states to build out broadband infrastructure in unserved areas [and would] create a process to deliver funds directly to states based on their proportion of unserved areas and includes a $1 billion set-aside for high-cost areas like West Virginia.”

National Telecommunications and Information Administration (NTIA)

The March 2021 NTIA webinar addressed NTIA Grant Programs in the Consolidated Appropriations Act of 2021, providing an overview of the new NTIA grant programs, including the Tribal Broadband Connectivity Grants ($1 billion), Broadband Infrastructure Deployment Grants ($300 million), and the Connecting Minority Communities Pilot Program ($285 million). Part 2 of this important webinar is scheduled for April 21, 2021. Archived NTIA webinars are here.

There was no March BroadbandUSA Newsletter. The February BroadbandUSA Newsletter links to articles on state funding for broadband infrastructure in Pennsylvania and Virginia (among others) – see also this article about CARES broadband funding in Iowa. A November 2020 PEW article provides an overview of states’ efforts to tap CARES Act funding for broadband, with links to resources to track those efforts. The U.S. Department Of Education has a portal to track state usage of the $31 billion CARES Act Education Stabilization Fund and the National Governors Association reported in November 2020 on broadband projects using CARES Act funds. Somewhat related, Education Superhighway has published a comprehensive summary of federal funding sources for K-12 Home Connectivity.

U.S. Department of Agriculture (USDA) – Rural Utilities Service

The Consolidated Appropriations Act of 2021 allocated $100 million to the USDA Reconnect program. USDA is currently seeking comments on proposed changes for the next round of the ReConnect Program funding – comments are due April 27, 2021, the same day as the proposed changes become effective. There is a USDA webinar on April 14, 2021 at 2:00 PM ET providing an overview of the last two rounds of funding and discussing the rule changes – register here.

Proposed Reconnect projects can be viewed here (must create free log-in to access); 2019 awardees are identified here; 2020 awardees are here; proposed and funded projects are depicted on an interactive map here. The most recent RUS Community Connect Grant program application window is now closed; the Distance Learning & Telemedicine Grant Program is currently closed.

Precision Agriculture

The most recent meeting of the FCC’s Precision Agriculture Connectivity Advisory Task Force was March 12, 2021 and can be viewed here. Background and links to prior meetings are available here. The FCC’s Office of Economics and Analytics on December 15, 2020, released a working paper on the impact of broadband availability on agriculture:

The working paper analyzes the impact of increased broadband availability in rural areas on the productivity of U.S. farms, drawing on both FCC data on broadband availability by census tract and U.S. Department of Agriculture data on agricultural productivity by county, for key row crops like corn, cotton, hay, and soybeans. The working paper finds statistically significant effects of increased broadband service, both in terms of lower costs (fertilizer, fuel, seed, etc.) and higher production (yield). To cite one striking result, the analysis finds that a 1% increase in the number of 25 Mbps/3 Mbps or better broadband connections per 1,000 households is associated with a 3.6% increase in corn yields, as measured in bushels per acre.

The FCC’s recently-approved $9 billion 5G Rural Fund will include a $1 billion set-aside for agricultural use in Phase 2. Farms are already using private LTE networks with CBRS spectrum, including greenhouse monitoring in Missouri and supporting drone-mounted cameras to make real-time decisions on herbicide applications in North Dakota.

Federal Communications Commission

With Commissioner Jessica Rosenworcel elevated to Acting Chair of the Commission, the FCC is deadlocked with a 2-2 tie (Ds Rosenworcel and Geoffrey Starks; Rs Brendan Carr and Nathan Simington). Until a third Democrat is nominated and confirmed by the Senate, Commission actions will be limited to those that can garner at least one Republican vote. The agenda for the April 22, 2021 FCC Open Meeting has not been announced. The March 2021 Open Meeting included two items addressing the 3.45 GHz band of spectrum (more below) and an item addressing 5G Open Radio Access Networks. The February Open Meeting mainly included staff presentations on new programs or spending recently authorized by Congress, including: the $3.2 billion for Emergency Broadband Benefit Program; the $249.95 million for another round of the COVID-19 Telehealth Program; and the $65 million for the Commission finally move forward on broadband mapping.

Universal Service/Digital Equity

The FCC has released the 2020 Universal Service Monitoring Report containing summary data for all universal service programs (data through September 2020). The current universal service construct, which is over 25 years old, is straining to address the equitable distribution of limited broadband resources – partly reflected in a universal service fund contribution factor that just jumped in one quarter from 27% to almost 32%. In March 2021 the FCC announced that the 2nd Quarter 2021 Contribution factor will be 33.4%. Notably, the related concepts of universal service and digital equity seem to be merging, as illustrated by this recent comprehensive Benton report: “Broadband for America NOW”.

COVID-19: New Telehealth Programs

Connected Care Pilot Program: The Commission in January issued a public notice with the first group of awardees in the $100 million Connected Care pilot program (application window closed December 7): $26.6 million for a group of 14 projects, including awards to University of Virginia, University of Mississippi, Duke University, and Temple University. The FCC’s Connected Care Pilot webpage has full background on the program.

COVID-19 Telehealth Program: Congress in December 2020 authorized a further $249.95 million for another round of COVID-19 Telehealth Program awards (Round 2). After briefly seeking public comment on selection criteria for Round 2 the FCC on March 30 released program rules for Round 2. They indicated that an application window for Round 2 will be announced shortly.

E-rate

With Congress authorizing a $7.1 billion E-rate “Emergency Connectivity Fund” providing support for off-campus use (from the Treasury, not from the USF), events have overtaken the petition filed by the Schools, Health & Libraries Broadband Coalition (SHLB) and a group of education advocacy organizations seeking to use regular E-rate funding for the same. Rules for what is essentially a new program must be enacted within 60 days of enactment (by May 10). The Commission on March 16 initiated an expedited public comment cycle, with initial comments due April 5 and replies due by April 23. The Commission noted the scope of funding as follows:

In providing support through the Emergency Connectivity Fund, the American Rescue Plan directs the Commission to reimburse 100% of the costs associated with the purchase of eligible equipment and/or advanced telecommunications and information services, “except that any reimbursement of a school or library for the costs associated with any eligible equipment may not exceed an amount that the Commission determines, with respect to the request by the school or library, is reasonable.” Section 7402 of the American Rescue Plan defines eligible equipment to mean (1) Wi-Fi hotspots, (2) modems, (3) routers, (4) devices that combine a modem and router, and (5) connected devices. It also provides that the term “advanced telecommunications and information services” means advanced telecommunications and information services, as such term is used in section 254(h) of the Communications Act.

Rural Health Care (RHC)

The FCC on February 12, 2021, extended the RHC filing window to June 1, 2021, granting SHLB’s request for the same. On March 12, 2021, the FCC announced that the inflation-adjusted RHC program caps for funding year 2021 (July 1, 2021through June 30, 2022) would be $612 million for the overall program and $154.5 million for upfront payments and multi-year commitments under the Healthcare Connect Fund Program. The problems rolling out the 2019 reforms to the Telecommunications Program are reflected in two recent Commission actions: in late December directing USAC to update the database to include the most recent approved rates; and in January allowing Alaska health care providers to use rural rates from prior years, thereby exempting from rates in the new database for the next funding year. SHLB in the letter linked above also asked the Commission to adopt a similar waiver for the lower 48 but extend it to urban rates as well. That request remains pending.

Net Neutrality

Tech lobbying for the FCC to restore net neutrality has begun – however, it is unlikely the Commission will consider acting until the Democratic majority is in place sometime later this year. Net neutrality legislation in the Democratic congress is also back under consideration. In the meantime, litigation at the state level continues. Recall the DC Circuit in upholding the FCC’s repeal of net neutrality rules reversed the FCC claim of blanket preemption of state-specific rules. In addition to California and Vermont, four other states have enacted some form of net neutrality law: Colorado, Maine, Oregon, and Washington, none of which have yet been challenged by industry or the federal government. The likely reason for no new cases is potential litigants were looking to the California and Vermont cases to see what those courts do (litigation update below). Meanwhile, Public Knowledge highlights some of what carriers are up to in the absence of federal net neutrality rules.

Federal Courts:

Controversy over enforcement of the California law erupted immediately as wireless carriers began claiming the California law prevents them from providing zero-rated bandwidth for a veterans telehealth service provided via mobile devices. While the carrier claims are contested, talks underway are expected to quickly resolve this particular situation.

States

The National Conference of State Legislators (NCSL) features a summary of net neutrality efforts by state for 2020 here (updated January 19, 2021). Note this list does not identify current laws, only current efforts to pass new laws.

[1] By way of example, this article highlights the potential impact of this funding in Maine (as much as $120 million). Senate Democrats provided a breakdown of estimated funding to the various units of government here.

[2] The linked article discusses President Biden’s $2.2 trillion infrastructure package, announced March 31, 2021, which we will address further next month.

Courtesy Fletcher, Heald & Hildreth, PLC