By Grant Spellmeyer, ACA Connects President & CEO
We all recognize that the Broadband Equity, Access, and Deployment (BEAD) program presents an historic opportunity to connect all Americans with access to high-speed broadband. So far, NTIA has done a commendable job of implementing the program, but there still much work to do. Recently, Senator Wicker and Representative McMorris Rodgers addressed one critical issue requiring further attention to ensure broadband deployment projects are completed on time: the role State agencies and local governments need to play in issuing permits for access to public rights-of-way and infrastructure for BEAD program projects. These Congressional leaders cautioned that “burdensome and costly permitting requirements, lengthy review timelines, insufficient staff to review and process permitting applications, and other regulatory red tape can drastically delay and even discourage deployment, which may foreclose access to affordable broadband services.”
Based on our Members’ experiences deploying broadband to nearly 23 million locations, ACA Connects agrees that these kinds of deployment barriers—if left unchecked—could undermine the success of the program. ACA Connects thus applauds NTIA for directing States and Territories to “identify steps” to address such barriers as part of their Initial Proposals. This is a great start, but experience tells us that it will not be enough. As Senator Wicker and Representative McMorris Rodgers wrote, States and Territories must be held to more stringent requirements if we are to ensure that timely and cost-effective access to public rights-of-way and infrastructure is achieved in practice, so that BEAD program-funded deployments can proceed on schedule.
Thankfully, NTIA possesses authority under the BEAD program statute to adopt and enforce such requirements as part of its implementation and oversight of the program. We thus urge NTIA to build on the NOFO’s strong foundation by directing each State or Territory to certify as part of its Initial and Final Proposal that it will exercise its authority to the fullest possible extent to ensure that State agencies and local governments within its jurisdiction comply with the following pro-deployment laws, regulations, and policies:
Fees: The fees that State and local government agencies charge BEAD program subgrantees for access to public right-of-way and infrastructure shall (1) be a reasonable approximation of the State or local government’s direct costs incurred in permitting access to its public rights-of-way and infrastructure, (2) include only objectively reasonable and actual direct costs, and (3) be no higher than the fees charged to similarly-situated competing providers in similar situations. A State or local government agency may not assess fees in excess of this cost-based threshold based on other factors, such as the number and types of services offered over a broadband provider’s network or the revenues derived therefrom, nor may it otherwise duplicate the fees already paid by such provider to access the public rights-of-way or infrastructure.
Timing: Within 45 days of receiving a complete application for right-of-way or infrastructure access from a BEAD program subgrantee, which shall be determined by reasonable and objective criteria, a State agency or local government shall either approve or reject the application.
Dispute Resolution: There is a dispute resolution process in place that allows BEAD program subgrantees to appeal unfavorable decisions from State agencies or local governments regarding access to rights-of-way or infrastructure, including failures to act on applications in a timely manner. The dispute resolution process should take the form of an administrative proceeding conducted by neutral hearing officer in which the applicant may present evidence and testimony and receive a binding decision from the hearing officer within 60 days that is based on the evidence in the record and a sound rationale.
To the extent a State or Territory lacks authority to implement or enforce such policies (e.g., due to lack of authority to override local government permitting decisions), NTIA should require it to disclose and explain such limits on its authority as part of its Initial and Final Proposal. In addition, to make these certifications meaningful, NTIA should be prepared to weigh in when BEAD program projects are held up because State agency and local government actions run contrary to the requirements set forth above. Additionally, as part of its audit of implementation of the program by States and Territories, NTIA should examine and publicize compliance with these certifications.
ACA Connects and our Members are eager to work with NTIA and States and Territories to put our recommended proposals into effect, as well as to entertain other measures that will make the promise of the BEAD program a reality.