Yet Another Call to Get Permitting Reform Done

Believers in the need for permitting reform received another boost on July 29 when two prominent voices co-authored a letter in Route Fifty calling for significant improvements in obtaining the government permits needed to start virtually all infrastructure projects. Brandon Tatum, CEO of the National Governors Association, and Jonathan Spalter, CEO of USTelecom, correctly note that maintaining global technology leadership will require significant investments in many fields. However, much of the current debate has centered around projects to extend broadband coverage to all Americans. Although both Congress and the Administration have made important strides in this issue, it is not clear that their efforts will result in lower costs or significantly faster permits.

The authors do a good job of putting the problem in perspective. They correctly point out that:

America is entering a period of extraordinary infrastructure need — driven by artificial intelligence, advanced manufacturing and data-intensive technologies. The country will need major expansions in electricity generation, transmission capacity, wireless infrastructure, fiber networks and more, simply to remain competitive, let alone to continue to lead the world and ensure future economic opportunities reach everyone. 

In a previous Perspectives from FSF Scholars, I pointed out the extraordinary demands that AI and related technologies will have on information networks. I also made a powerful argument for permit reform to allow contractors to shorten the time and costs of obtaining government approval to use rights-of-way. This is especially important for broadband projects. With the Administration’s Build America initiative and a $42.45 billion Broadband Equity and Access Deployment (BEAD) program, the pressure to complete projects extending broadband coverage to all Americans is likely to increase. Unjustified permitting costs and delays may well adversely affect the success of these projects. Broadband is part of a larger issue in which bureaucratic conservativism and lack of accountability result in long delays. In some cases, a lack of funds and/or expertise may also be part of the problem. Unfortunately, the cost of these delays is often hidden. Congress and the Administration have taken some positive steps: Senate leaders are discussing a broad bipartisan package for permitting. Most of the focus has been on streamlining the National Environmental Policy Act review process. The House of Representatives has passed reforms including the PERMIT Act and the SPEED Act aiming to set enforceable federal permitting timelines and address judicial review delays. In 2018, the FCC promulgated rules for Small Cells that set maximum time limits for deciding permit requests and restrictions on the fees agencies can charge contractors. It also proposed rules to speed both wireless and wireline deployments. Questions remain whether these good faith efforts will result in meaningful progress in obtaining broadband rights-of-way, let alone permission for other forms of infrastructure. The jury is still out on that. Each effort has been opposed by state and local governments arguing that neither the Communications Act nor the Constitution give Congress or the FCC the power to interfere with their permitting requirements. Although the BEAD program offers state and local governments the promise of broadband expansion, it also imposes a significant demand on local resources. Agencies with tight budgets may face a significant increase in workloads. The BEAD program currently contains $21 billion in unallocated funds. It would make sense to use at least some of that money to help agencies streamline their permitting processes. According to the Route Fifty letter, Massachusetts and West Virginia have implemented significant process improvements that could be extended to other jurisdictions. Most of "Build America’s future lies in its own hands. Subjecting projects to unnecessary costs and unreasonable delays frustrates the public will. As Tatum and Spalter say: “let’s build.”

Do Pole Attachment Issues Threaten BEAD Projects?

On May 12 researchers Alex Karras and Michael Santorelli of the Advanced Communications Law & Policy Institute at New York Law School published a report and analysis of the cost of getting access to utility-owned poles as part of the deployment costs under the historic Broadband Equity, Access, and Deployment (BEAD) Program. The bottom line is that projects funded by BEAD are expected to lay 188,287 miles of aerial fiber on 3.9 million poles within 2,053 separate electric utility service territories. Using rough estimates, the estimated pole costs that BEAD contractors will have to pay in order to attach to poles range from $534 million to $4.63 billion nationwide.

Every BEAD deployment contractor had to estimate actual pole attachment costs as part of the application process. The study’s authors were not trying to duplicate these estimates. However, the range of estimates could be a sign that actual costs will vary widely. In a situation where contractors are facing tight deadlines and where actual costs are uncertain, pole attachment issues could become the focus of a lot of deployment problems. Coming on top of a renewed legal battle between Comcast and Appalachian Power Company, the large range of attachment prices shows that there is tremendous room for disagreement between broadband contractors and pole owners.

 

According to the report, pole ownership and regulation follow a “scattershot” approach. Electric cooperatives play a disproportionate role. Although they only serve 13% of electric customers, about 40% of BEAD aerial fiber will be deployed across their territories. The FCC has jurisdiction over poles owned by investor-owned electric utilities (IOUs) in 27 states. In the other 23 states, IOU poles are regulated by state public utility commissions. Regulation of poles owned by cooperatives and municipal electric utilities differs among states. The authors speculate that: “[i]n states where cooperatives and municipal electric utilities are unregulated, there are few guardrails in place to provide predictability and consistency in how pole-related costs are set, increasing the chances that BEAD subgrantees could encounter higher-than-expected pole fees from these entities.”

Electric utility pole issues have a significant effect on broadband deployment. The National Telecommunications and Information Administration (NTIA) has tried to address regulatory problems by extending the reach of the FCC’s rules. The FCC recently showed its willingness to act quickly in resolving pole disputes by expediting its decision in a dispute between Comcast and Appalachian Power Company. Comcast alleged that Appalachian Power was charging it for pole damage that was caused by third parties. The Commission ruled that Appalachian Power could only charge Comcast for the incremental cost of its project.

However, Comcast recently approached the Commission complaining that Appalachian Power was refusing to abide by its ruling. Thus, it remains to be seen whether tougher action by the FCC or NTIA will translate into a quicker, less contentious process that lowers cost or whether it leads to a rise in litigation that slows everything down.

Using a variety of independent studies, the researchers chose low, medium, and high estimates of pole costs depending on whether a pole just needs equipment added or whether it needs replacement. Their estimates are limited to electric utility-owned poles, which constitute about 70% of the total. Including all poles would raise the price significantly. The estimates for the cost per touched pole were $75 (low), $175 (base), and $450 (high). The estimates for the percentage of poles that will have to be replaced were 3% (low), 4% (base), and 8% (high). Finally, the estimates for the cost of replacing a pole were $2,000 (low), $3,500 (base), and $9,000 (high). Using the base assumptions produced an estimate of $1.25 billion or roughly 6 percent of BEAD deployment funds. The boundary estimates were $534 million (low) and $463 billion (high). This leaves a lot of room for disagreement between BEAD contractors and pole owners.

What can be done? The NTIA requires cooperatives and municipal utilities that participate in the BEAD program as subgrantees to comply with FCC pole attachment rules as a condition of accepting BEAD funding. The rules cap rates and charges that pole owners can impose on contractors. They also create timelines for processing applications and require regular progress reports. The authors also advocate letting states use some of the remaining $21 billion in nondeployment BEAD money to offset unexpected pole attachment costs. They point to successful models in Texas and North Carolina as good examples. State regulators could also rationalize pole issues as well as the accompanying permitting, rights of way, and easement issues that accompany them.

With proper policies in place, broadband providers around the country will soon be engaged in a major deployment effort to significantly expand coverage to unserved and underserved areas. In a project of this scope, problems are inevitable. But many of these problems, including pole attachments, can be managed better if regulators and broadband providers perform proper due diligence, build strong relationships, and create transparent, predicable processes.

Revised BEAD Program Connects its First Location

On November 15, 2021, the Infrastructure Investment and Jobs Act – that is, the legislation that created the $42.45 billion Broadband Equity, Access, and Deployment (BEAD Program – was signed into law. On May 14, 2026, 1,641 days later, BEAD Program funding at long last enabled the connection of its very location.

Of course, millions more locations are expected to come online in the coming weeks, months, and years.

In remarks offered on location in Ogallala, Nebraska, NTIA Administrator Arielle Roth highlighted the expediting impact of the "Benefit of the Bargain" revisions adopted last year. She also discussed changes designed to reinstate Congress' technologically neutral intent. In that regard, she noted that "[i]t's not an accident that this connection here in Ogallala is from an unlicensed fixed wireless provider."

Finally, a reminder: Ms. Roth will be a keynote speaker at the Free State Foundation's Twentieth Anniversary Celebration on Thursday, June 4, from 11:45am to 3pm, at the National Press Club. If you haven't already, register here to catch her fireside chat with FSF President Randolph May as well as an impressive lineup of other speakers.

Finding a Consensus on Accomplishing Permitting Reform

With the House of Representatives’ failure to schedule a vote on the American Broadband Deployment Act of 2025, we may have reached an impasse, at least for the moment, on achieving additional permitting reform at the state and local levels. Congress has taken several steps forward on reform at the federal level. But these mostly involved changes to the National Environmental Policy Act or the National Historic Preservation Act, the statutes that govern the majority of federal permitting decisions. However, one past attempt at negotiation may offer some lessons.

The success at the federal level led many to conclude that circumstances might be right for a more comprehensive reform to remove obstacles at the state and local levels. On March 24, Representative Buddy Carter (R-GA) introduced H.R. 2289, the American Broadband Deployment Act, which combined provisions from roughly 20 previous bills, including shot clocks and limits on fees, to accomplish broad reform. The bill passed the House Committee on Energy and Commerce and was scheduled to go before the House Rules Committee on April 20^th. However, a vote was indefinitely postponed once it became obvious that the bill lacked the votes to pass. This change in outlook was widely attributed to opposition from a number of associations representing state and local government, including the National Association of Counties and the U.S. Conference of Mayors.

Although Congressman Carter expressed confidence that the bill would pass later this Congress, the debate currently seems to be at an impasse. While the FCC is pursuing permitting reform under its own authority, the timing of any decision is not known and any significant change will be immediately challenged in court, delaying its effect. Meanwhile the significant increase in buildout activity due to the Broadband Equity, Access, and Deployment Program (BEAD) is approaching.

This is a shame because sensible permitting reforms would benefit both broadband providers and local governments. To start, unnecessary time and costs delay the build-out and use of broadband coverage to local households. Coverage in turn is firmly linked to greater economic activity and higher living standards. In the short-run permitting also increases local demand for skilled labor. So far much of the debate has been confined to anecdotes regarding specific experiences and limitations on the FCC’s powers, especially in light of recent Supreme Court decisions. While a list of unreasonable fees, unrelated construction requirements, poor construction planning, and damage to state and local property catches one’s attention, it is probably not the best grounds for determining public policy.

Almost two years ago the Benton Institute for Broadband & Society teamed up with the Georgetown Law Institute for Technology Law & Policy and groups of both Internet supporters and state and local governments to explore the possibility of improving the permitting process in ways that benefit all stakeholders. The effort involved a survey of stakeholders, a one-day conference, and a written report.

The report contained several sensible suggestions for reform. It listed three findings, each of which produced more specific suggestions. First, the parties should foster a partnership between the permit seeker and the permitting authority. They should try to create trust and accountability by meeting early and often and understanding the role of both local government and the proposed development. According to the report, one key issue is determining when any shot clock would start.

Second, the parties should maximize the resources available to the permitting authority. There was a consensus that many permitting agencies lack the resources needed to handle the normal permitting volume, let alone the significant increase expected from BEAD disbursements. Given BEAD’s history and the current delay in announcing how the government will spend approximately $21 billion in non-deployment funds, one should not be surprised if a large number of projects experience significant delays from a variety of causes, placing greater strains on agencies. Given that much of the under capacity may be due to the increase in BEAD-funded construction projects, perhaps using some of the excess to increase local capacity, at least through the surge, makes sense. Providers should also help agencies build public support by articulating the benefits of broadband delivery.

Third, the process should be transparent and consistent. Efforts to modernize the process by allowing builders to download forms, submit applications online, and look up the current status of projects can lower total costs and reduce unnecessary duplication. Modern online dashboards are already being used successfully in some jurisdictions.

In general, and certainly in the abstract, the Benton Institute report recommendations are sensible and merit action. However, they do not address some of the worst abuses regarding permitting at the local government level. These abuses increase the costs of broadband deployment projects and delay the provision of new or improved service to consumers.

Taking the position that state and local governments should face no deadlines, should be able to charge whatever fees they suggest are reasonable, and should be allowed to require substantial unrelated improvements seems like something we should avoid.

Using the BEAD Savings to Eliminate Mobile Dead Zones

Since being nominated by President Trump and confirmed by the Senate to be Assistant Secretary of Commerce for Communications and Information and Administrator of the National Telecommunications and Information Administration (NTIA) in July 2025, Arielle Roth has been doing an excellent job in reforming the Broadband Equity, Access, and Deployment (BEAD) program. The $42.45 billion program is intended to subsidize broadband deployment to unserved and underserved areas.

For several years after Congress authorized the BEAD program, it languished under the Biden administration, encumbered by costly extraneous requirements that delayed development of the state plans that were required to be approved to distribute the funds in each state. Even before Administrator Roth assumed office, the Department of Commerce, under the leadership of Secretary Howard Lutnick, required changes to the Biden administration's BEAD rules. These critical Trump administration reforms, implemented by Administrator Roth, in short order led revisions in the state plans that produced substantial "Benefit of the Bargain" cost savings in the states' deployment proposals. This has resulted in a $21 billion surplus. The abandonment of the Biden administration's unreasonably presumptive preference for funding fiber-only deployments, regardless of cost, in favor of a more economically efficient rational technology-neutral approach, played a significant role in producing the surplus.

Administrator Roth is now considering how the $21 billion in savings attributable to the "Benefit of the Bargain" process should be used to best serve the American people.

Along with me, my Free State Foundation colleague Andrew Long has played a key role in advocating reforms to the BEAD program during the Biden administration years, most of which have been adopted by Secretary Lutnick and Administrator Roth. Now, in a recent FSF Perspectives, Mr. Long recites some of the acceptable uses that should be considered for expenditure of the BEAD surplus, including, for example, establishing a reserve fund to ensure the deployment job would be finished, enhancing public safety, and improving the permitting process.

Here I want to call attention to another suggestion deserving serious consideration – T-Mobile's proposal to allow states to use a portion of the BEAD surplus to "End Mobile Dead Zones." T-Mobile proposes that no more than $8 billion should be used to close remaining rural dead zones. According to John Saw, T-Mobile's President and CTO, T-Mobile's analysis shows that, with the capped $8 billion, about 6,000 more mobile macro sites could extend 5G coverage to roughly 99% of Americans, including key rural roads. Using a portion of the BEAD funds this way, to support a national mobile infrastructure program, would alleviate the need for a new USF 5G fund. And by extending 5G coverage to rural locations still lacking it, public safety would be enhanced by eliminating remaining mobile connectivity gaps.

If I had my druthers, I would prefer returning a significant portion of the $21 billion in cost savings to the U. S. Treasury for the benefit of America's taxpayers. Regardless of whether or not that's in the cards, T-Mobile's proposal to use no more than $8 billion of the surplus to build out mobile macro sites to close remaining rural dead zones is certainly worthy of serious consideration. 

Senate BEAD Hearing Addresses Questions About Future Performance

On February 10^th, the Senate Appropriation Committee’s Subcommittee on Commerce, Justice, Science, and Related Agencies held a hearing entitled “A Review of Broadband Deployment Funding at the Department of Commerce.” The sole witness was Secretary of Commerce Howard Lutnick. Although other topics arose, the majority of time was spent on an update of the Broadband Equity Access and Deployment Program (BEAD). The Free State Foundation has recently written about these same issues addressed at the hearing.

Senator Jerry Moran, Chairman of the Subcommittee, started the hearing with his opening remarks. While he acknowledged that the "Benefit of the Bargain" initiative imposed by the Trump administration had resulted in apparent savings of $21 billion, it still remains the case that no Internet connections have been made and no programs have been completed. States still face hurdles spending BEAD money. Senators also have questions about what will happen to unallocated funds. Senator Moran also alleged that the "Benefit of the Bargain" effort focused on getting the cheapest price rather than the best value.

In their individual questions many Senators expressed significant concern about what will happen to the Fund’s unallocated $21 billion. They clearly favor reallocating it to the states for purposes related to broadband expansion. They did not, however, express a clear preference about how the remaining money should be divided among the states or the purposes for which it should be used. Some worried that the existing allocation would not be enough to achieve the mission of universal coverage.

Secretary Lutnick’s replies addressed some of their concerns. He clearly stated that the funds would not be returned to the Treasury. Rather, the statute authorizing the BEAD program will govern the allocation of remaining funds. However, that statute gives the Department a great deal of freedom regarding their use so long as it is related to the general goal of achieving universal coverage. The Department is actively soliciting ideas and plans to kickoff a listening tour with a town hall on February 11^th. As for the adequacy of the funds, Secretary Lutnick pointed out that, as a condition of getting its grant, each state broadband authority was required to achieve full coverage of its population. As a result, he said no state should run out of money. The Secretary would not commit to spending the money solely on further broadband expansion, however. He did promise that providers, including Starlink, would not be allowed to change their commitment after the fact.

Although some Senators stated their states were having trouble accessing the money, Secretary Lutnick indicated that access should have been granted once the states signed their approved plans. He also said that this process is almost completed and should move quickly from now on.

As for the unallocated money, several possible uses have been suggested. These include efforts to speed the permitting process, the purchase of additional poles to which equipment can be attached, using broadband to increase the use of precision agriculture, and furthering public safety. At the end of the hearing Chairman Moran asked whether the Administration might retroactively condition BEAD spending on states not passing AI laws. A recent Executive Order apparently tasks the Secretary with recommending whether such a condition could be imposed. Secretary Lutnick deferred answering.

Senators are clearly skeptical that the BEAD Program will accomplish extending broadband coverage to everyone. They are also very interested in how the remaining $21 billion will be spent. The Secretary is likely to face more questions unless significant new broadband deployment starts to occur soon or Senators generally approve of how remaining funds are allocated.

Draft Bill Would Reclaim BEAD Program Nondeployment Funds

Senator Joni Ernst (R-IA) reportedly has drafted legislation that would direct the states to return funds from the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program not specifically used for broadband deployment – a savings estimated to be as high as $20 billion.

The "Recovering Excess Communications Appropriations while Protecting Telecommunications Upgrades, Reinvestment, and Expansion Act" (the RECAPTURE Act), which as of this writing has not yet been introduced, would amend the statute that created the BEAD Program – the Infrastructure Investment and Jobs Act (IIJA) – to clarify that each state shall "deposit in the general fund of the Treasury, for the sole purpose of deficit reduction," funds beyond those "designated for a specific purpose in the final proposal" approved by NTIA – that is to say, in the wake of the "Benefit of the Bargain" revisions, nondeployment funds.

In "How to 'Spend' Unused BEAD Funding," an October Perspectives from FSF Scholars, former FCC Commissioner and current Free State Foundation Adjunct Senior Fellow Michael O'Rielly – while acknowledging that some state use of BEAD Program funds for non-deployment purposes is "contemplated in the infrastructure law" – recommended two alternative approaches:

• One, given that the national debt is massive and growing rapidly, nondeployment funds should be returned to the U.S. Treasury: "[w]ith the nation facing such widely acknowledged financial difficulties, the thinking by many experts is that this money needs to be reclaimed."

• Two, in light of past grant-recipient performance, at least some of that money should be set aside "to account for the simple fact that not all broadband builds will happen as planned…. [E]xperience suggests that a reserve funding stream could be useful to handle this inevitability."

It is worth noting that others, including Senator Roger Wicker (R-MS), have argued that the IIJA allows states to retain any such remaining money. As Senator Wicker wrote in September:

[T]he Trump administration has changed the way these broadband funds will be spent. Because of this, many states' proposals will come in under budget. These states could actually end up with leftover funds from the 2021 broadband legislation. In that law, Congress was clear: States can use this remaining grant money. That policy rewards those who wisely stewarded their deployment funds.

Senator Ernst's draft legislation, should it ultimately become law, would provide a definitive response to this potentially open question.

Relatedly, Senator Ernst announced on November 7 that she is introducing the "Returning Unspent COVID Funds Act," a bill that would "claw back more than $65 billion in unspent COVID funds and return the money to taxpayers." That legislation would target subsidy programs created by the American Rescue Plan Act of 2021, among others.

NTIA's Roth Targets Net Neutrality, Duplicate Funding

In remarks delivered at the Hudson Institute on October 28, NTIA Administrator Arielle Roth announced implementation changes to the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program regarding two topics of substantial concern for Free State Foundation scholars: (1) the imposition of so-called "net neutrality" obligations, and (2) the possibility of overlapping federal subsidies.

With respect to the former, Roth clarified that state-level net neutrality statutes represent a form of rate regulation inconsistent with statutory language found in the Infrastructure Investment and Jobs Act – "[n]othing in this title may be construed to authorize the Assistant Secretary or the National Telecommunications and Information Administration to regulate the rates charged for broadband service" – and therefore may not be applied to BEAD Program subgrantees, not just in subsidized areas, but statewide:

State-level net neutrality rules—itself a form of rate regulation—create a patchwork of conflicting regulations that raise compliance costs and deter investment…. To protect the BEAD investment, we are clarifying that BEAD providers must be protected throughout their service area in a state, while the provider is still within its BEAD period of performance. Specifically, any state receiving BEAD funds must exempt BEAD providers throughout their state footprint, from broadband-specific economic regulations, such as price regulation and net neutrality.

Regarding the latter, Roth announced a straightforward solution to the duplicate-funding risk I have highlighted on many occasions, most recently in "The Failure's in the Footnote: Agencies Must Improve Broadband Expenditure Coordination Efforts," a January 2025 Perspectives from FSF Scholars:

NTIA will require states to have providers certify in writing that they will not require or take additional federal subsidies—including operational subsidies—to complete or operate their BEAD projects…. BEAD was designed to close broadband gaps once and for all, not create another cycle of dependency. Congress envisioned "future-proof" networks that would stand on their own, not require permanent federal subsidies or future bailouts.

These changes are of a piece with other action Roth has taken to realign the BEAD Program with congressional intent, as well as ongoing efforts to prevent waste, fraud, and abuse.

Video of Roth's remarks can be found here.

Roth's NTIA Takes Early Aim at Rate Regulation

On July 30, 2025, Arielle Roth officially assumed the role of Assistant Secretary of Commerce for Communications and Information, a position that includes serving as Administrator of the National Telecommunications and Information Administration (NTIA). Days later, NTIA released updated Frequently Asked Questions (FAQs) regarding the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. Notably, the revised FAQs underscore a significant policy shift from the Biden Administration's approach, one that aligns with Congress's explicit prohibition against broadband rate regulation.

This latest version of the FAQs builds on the BEAD Restructuring Policy Notice (BEAD RPN) that was released in early June. The BEAD RPN made numerous substantive changes to the Notice of Funding Opportunity (NOFO) that the Biden Administration NTIA issued in May 2022, including several addressing the low-cost service option (LCSO) requirement for BEAD Program grant recipients.

Under the NOFO, NTIA imposed prescriptive price and service terms for the LCSO. These included effective mandates on the maximum monthly rate, restrictions that, in substance, amounted to prohibited rate regulation.

The RPN eliminated those requirements: "BEAD subgrantees must still comply with the statutory provision to offer at least one LCSO, but NTIA hereby prohibits [states] from explicitly or implicitly setting the LCSO rate a subgrantee must offer." The updated FAQ expounds upon this point:

The IIJA prohibits NTIA or the Assistant Secretary from engaging in rate regulation. Because the Assistant Secretary must approve the LCSO in the Final Proposal, the rate contained may not be the result of rate regulation. The RPN addressed this fundamental flaw in the BEAD NOFO. The RPN eliminated BEAD NOFO requirements dictating price and other terms for the required low-cost service option.

In addition, the FAQ notes that, "[p]er the RPN, states may not apply state laws to reimpose LCSO requirements removed by the RPN."

This, of course, is a sharp departure from the Biden Administration's deeply flawed approach. As I described in a February 2024 Perspectives from FSF Scholars, "Virginia Flags NTIA's Impermissible Pressure to Regulate Broadband Rates," NTIA sought to compel Virginia to "specify an exact price or formula" for the LCSO.

That demand directly conflicted with Section 60102(h)(5)(D) of the Infrastructure Investment and Jobs Act, which states that "[n]othing in this title may be construed to authorize the Assistant Secretary or the National Telecommunications and Information Administration to regulate the rates charged for broadband service."

By making explicit that neither NTIA nor a state may dictate broadband rates, the RPN and the updated FAQs realign BEAD Program implementation with the letter of the law. In doing so, they empower grant recipients to develop sustainable offerings. They also foster competition, innovation, and continued private investment (to the tune of $2.2 trillion and counting).

Released in the first few days of Roth's tenure as NTIA Administrator, these updated FAQs are a welcome indicator that, going forward, the BEAD Program will hew far more closely to congressional intent.

A Revisionist History of the BEAD Program Ignores Congressional Intent

Today's Policyband (subscription required) included a useful pointed critique of a July 9 Washington Monthly article suggesting a clandestine plot by Republican lawmakers to sabotage from within the $42.45 billion Broadband Equity, Access, and Deployment (BEAD) Program. But there is even more that can be said by way of rebuttal.

The extraneous, partisan policies layered on top of the Infrastructure Investment and Jobs Act (IIJA) by the Biden NTIA were not the issue, authors Paul Glastris and Kainoa Lowman insist. Instead, they make the unsupported claim that "the complexity and delays of the BEAD program and the broader failure of Washington over many years to solve the digital divide is overwhelmingly the result of telecom monopolies whose economic and political power previous administrations unleashed."

Likening NTIA's Notice of Funding Opportunity to an "everything bagel," the piece nevertheless goes to great lengths to assure us that requirements not found in the IIJA – promoting policies relating to labor standards, climate threats, net neutrality, third-party (so-called "open") access, and so on – "were not major time sinks." The real impediment, they suggest, was "incumbents' goal of avoiding competition to their existing infrastructure." The truth, meanwhile, is that lawmakers appropriately took reasonable steps to prevent the use of federal subsidies to overbuild privately financed networks to prevent waste and encourage additional private investment.

In the IIJA, Congress, exercising its authority under Article I of the Constitution's Spending Clause, reached a relatively rare bipartisan compromise. That compromise sought to learn from the mistakes of the past – mistakes that the authors describe at length – and once and for all connect those remaining locations not yet served by privately constructed broadband Internet infrastructure.

According to USTA | The Broadband Association, providers have invested nearly $2.2 trillion in broadband infrastructure since 1996 – including $94.7 billion just in 2023. Largely because of that capital spending, the FCC reported in May that "110 million homes and small businesses (95 percent) have access to a terrestrial fixed service with speeds of 100 Mbps download and 20 Mbps upload (100/20) or greater."

What the authors willfully choose to ignore is that the stated goal of the IIJA was to subsidize the prohibitively high price tag to connect primarily rural locations still "unserved" – not to use taxpayer dollars to compete with these existing, privately funded networks, which of course would disincentivize future investment.

Accordingly, Congress in the IIJA defined "unserved" as without access to speeds of at least 25/3 Mbps and "underserved" as lacking access to speeds of at least 100/20 Mbps; designated the FCC's then-under-development National Broadband Map as the definitive source of location-specific service availability information; established a challenge process to verify that information; and enlisted state-level offices to determine how best to overcome the unique geographic, financial, and other factors encountered within their borders.

To be sure, in practice BEAD Program implementation has left much to be desired. To suggest, however, that measures agreed to by Congress to avoid the wasteful overbuilding of existing broadband infrastructure using taxpayer dollars somehow tell a "story … of how telecom monopolies are behind the failure of government to solve the digital divide" ignores both the substantial role played by Biden NTIA overreach and the well-documented – in the article itself, no less – mistakes of the past.

Instead of engaging with the IIJA's actual text and structure, the authors rely on a convenient – but wrong-headed – narrative to try to deflect accountability away from those truly responsible and onto those that have invested the trillions necessary to connect nearly every location in the U.S.