By: Sean Conway, Deputy Chief Counsel, NTIA

The National Telecommunications Information Administration (NTIA) released a Policy Notice today providing guidance on the application of the Uniform Guidance in the $42.45 billion Broadband Equity, Access and Deployment (BEAD) Program. This Policy Notice reflects NTIA’s latest step to create the conditions necessary for building high-speed networks that connect everyone in America to affordable, reliable, high-speed Internet service. 

What is the Uniform Guidance? 

The Uniform Guidance is the Federal Government’s framework for grants management, providing rules and requirements for Federal grant programs. Recognizing that there is no one-size-fits-all approach for administering these programs, the Uniform Guidance itself contemplates ways in which Federal agencies can implement exceptions and adjustments to these regulations.  

Established through the Infrastructure Investment and Jobs Act, also known as the Bipartisan Infrastructure Law, BEAD is a grants program like no other—differing from prior federal broadband funding programs in a number of material ways. Most notably, it is the first program to require that awardees (i.e., states and territories) ensure universal availability of high-speed Internet access, including to those locations that have not been addressed by prior programs because they have proven to be the most difficult and expensive to serve. This unprecedented effort will require that each awardee maximize incentives for provider participation.   

Following publication of the BEAD Notice of Funding Opportunity, various stakeholders identified provisions of the Uniform Guidance that they argued would deter participation of Internet service providers in the BEAD Program and/or increase administrative costs with no commensurate corresponding benefits. NTIA subsequently issued a Request for Comment (RFC) to provide an opportunity for all stakeholders to comment on the application of the Uniform Guidance in the BEAD Program.   

NTIA received more than 60 comments—with a record that includes input from governors’ offices, state broadband offices, local government stakeholders, and both large and small Internet service providers, among others. You can find these comments by visiting the Uniform Guidance RFC page at Regulations.gov. This public input helped inform NTIA’s approach to the exceptions and adjustments it is applying in the BEAD Program. 

What we heard 

Our record reflects one theme repeated more frequently than all others: stakeholders support NTIA aligning its approach to the Uniform Guidance with that recently adopted by the Treasury Department for broadband infrastructure projects funded by the Coronavirus State and Local Fiscal Recovery Funds and Capital Projects Fund programs.  

State broadband offices and industry stakeholders reiterated in their comments that aligning the rules of the road for the BEAD and Treasury programs would increase incentives for participation and streamline the administrability of these programs by state broadband offices.  

What we are doing 

NTIA's Policy Notice is directionally aligned with Treasury’s approach, while also reflecting differences to account for distinctions between implementing statutes and program structures. Among the similarities with the Treasury programs, NTIA’s Policy Notice: 

• Provides flexibility for program income: Service providers will be able to use program income from BEAD-funded broadband infrastructure projects without restriction, and states will not be required to track the program income of these subrecipients;
• Leverages the efficiencies of fixed amount subgrants: Stakeholders will be permitted to leverage the efficiencies of fixed amount subgrants in broadband infrastructure projects, reducing administrative costs for service providers and state broadband offices alike;
• Enables permissionless network upgrades: Service providers will be permitted to upgrade the equipment in BEAD-funded networks without first obtaining NTIA’s approval; and
• Establishes a ten-year Federal Interest period for broadband infrastructure projects: BEAD-funded networks will be subject to a Federal Interest period that runs for ten years after the network is constructed. 

These actions are not only consistent with the approach taken in the Treasury programs, but they also largely reflect policies that the Federal Communications Commission has employed for decades in its Universal Service Fund programs.  

At the same time, today’s Policy Notice does reflect some differences from the Treasury approach. Most notably, NTIA believes the BEAD statute requires states and territories to structure their financial agreements with service providers as “subgrants,” making all providers building and operating BEAD networks subject to the Uniform Guidance. If these financial agreements were structured as contracts, a more limited set of the Uniform Guidance regulations would apply to these providers. The Treasury Department has delegated to states and localities the decision on how to structure their financial agreements with service providers, consistent with Treasury’s interpretation of its relevant statutory provisions.

This key statutory difference notwithstanding, NTIA’s approach to the Uniform Guidance is directionally aligned with the Treasury Department’s policies.  Moreover, the actions reflected in today’s Policy Notice strike a well-reasoned balance that will increase efficiencies for state broadband offices and promote service provider participation, while also ensuring a high level of accountability. Ultimately, this approach will further the goal of ensuring everyone in America has access to affordable, reliable, high-speed Internet service.