BEAD Restructure Eliminates Fiber Preference

The National Telecommunications and Information Administration (NTIA) issued a notice on June 6 eliminating the so-called “fiber preference” from the Broadband Equity, Access, and Deployment (BEAD) program and rescinding all previous approval of final proposals because “those final proposals no longer effectuate the goals of the program or the agency priorities that are detailed in [the] notice.”

In its 23-page notice, the NTIA explained the document “modifies and replaces certain requirements outlined in the BEAD Notice of Funding Opportunity (NOFO). Each eligible entity must comply with this policy notice to gain approval of its final proposal from the Assistant Secretary of Commerce for Communications and Information.”

In short, the notice eliminates the so-called “fiber preference” in the original statute, which declared only broadband projects using end-to-end fiber were given priority status. The original statute required entities to prioritize funding for priority projects. The original NOFO stated that only end-to-end fiber projects qualified as “priority projects,” defined as follows:

• “Provide broadband service that meets speed, latency, reliability, consistency in quality of service, and related criteria as the Assistant Secretary shall determine; and
• Ensure that the network built by the project can easily scale speed over time to (a) meet the evolving connectivity needs of households and businesses; and (b) support the development of 5G, successor wireless technologies, and other advanced services.”

In its June 6 notice, the NTIA declared a new definition of Priority Broadband Project, as follows:

The term “Priority Broadband Project” means a project that provides broadband service at speeds of no less than 100 megabits per second for downloads and 20 megabits per second for uploads, has a latency less than or equal to 100 milliseconds, and can easily scale speeds over time to meet the evolving connectivity needs of households and businesses and support the deployment of 5G, successor wireless technologies, and other advanced services.

The NTIA’s notice elaborated on eligible technologies: “The United States is topographically diverse and the most effective broadband technology for one part of the country may not be the best fir for another. Therefore, NTIA eliminates the NOFO’s rigid three-tier structure for prioritizing technology. Fiber-optic technology, cable modem/hybrid fiber-coaxial technology, LEO [low Earth orbit] satellite services, and terrestrial fixed wireless technology utilizing entirely licensed spectrum, entirely unlicensed spectrum, or a hybrid of licensed and unlicensed spectrum, may be used in applications for Priority Broadband Projects so long as the technologies employed in the project proposal meet the technical performance requirements in the NOFO, as redefined in this Policy Notice, and the statute.”

While acknowledging that some entities have completed subgrantee selection or are well on their way to such completion, the notice requires all entities to reopen their selection process. The NTIA calls this additional step the “Benefit of the Bargain Round.”

“The Benefit of the Bargain Round must permit all applicants—regardless of technology employed or prior participation in the program—to compete on a level playing field undistorted by the non-statutory regulatory burdens eliminated …," NTIA requires. "All eligible entities must rescind all preliminary and provisional subaward selections and notify applicants that a further round of applications will be considered before final awards are made.”

Entities that have already completed subgrantee selection must complete a Benefit of the Bargain Round within 90 days and submit a final proposal resulting from that round. The NTIA will complete its review of these final proposals within 90 days of their submission.