Senate Bill Would Ensure Timely Broadband Infrastructure Builds on Federal Land

On July 29, Senators John Thune, Ben Ray Luján, and John Barrasso introduced the Accelerating Broadband Permits Act. The purpose of the bill is to improve executive agencies’ processing of permit applications for the construction of communications facility installations on federal land. Under the MOBILE NOW Act of 2018, executive agencies with supervision over federal lands have 270 days to make decisions on applications for permits to build towers, antennas, cables, or any other infrastructure associated with wireless or wireline services. An April 2024 Government Accountability Office Report found problems with agencies processing those applications within the deadline. The Accelerating Broadband Permits Act is intended to address those problems and help identify instances where the agencies are likely to fail to meet the deadline and ensure timely processing.

The FCC has long recognized that local permitting processes are often a major impediment to timely broadband access. The Accelerating Broadband Permits Act would help alleviate that impediment on federal lands. The Act appears to be worthwhile legislation that could help accelerate network infrastructure deployment to underserved and unserved Americans. Much land in western states is held in trust or owned by the federal government, and federal agencies must fulfill the responsibilities that come with being a trustee or property owner, not to mention comply with the MOBILE NOW Act. 

 

Senators Thune, Luján, and Barrasso deserve credit for bringing forward this bill. Several billion dollars in subsidies are going to be distributed by NTIA to the states under the Broadband Equity, Access, and Deployment (BEAD) Program to fund new buildouts. The effectiveness of BEAD Program subsidy dollars will depend, to a significant extent, on having workable federal siting policies in place. The 118th Congress should give the Accelerating Broadband Permits Act timely consideration.  

Senate Bill Would Improve Permitting for Broadband Projects on Federal Land

On September 21, Senators John Barrasso and Kyrsten Sinema introduced the Closing Long Overdue Streamlining Encumbrances to Help Expeditiously Generate Approved Permits (CLOSE THE GAP) Act. The purpose of the bill is to make permitting processing faster and more efficient for broadband infrastructure projects on federal lands.

Among other things, the CLOSE THE GAP Act would require federal land management agencies – namely, National Park Service, Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, Bureau of Indian Affairs, and Forest Service  – to adopt new rules for streamlining the process for considering and approving broadband project applications on federal lands. Within a year of the Act becoming law, the Secretary of the Interior would be required to adopt regulations that, the maximum practical extent, require federal land management agency permitting processes be "uniform and standardized." Also, the regulations must require that applications to locate or modify broadband facilities must be granted on a "competitively neutral, technologically neutral, and nondiscriminatory basis." And agency cost recovery fees for locating or modifying facilities must be cost-based. 

 

Additionally, the CLOSE THE GAP Act would make it easier to monitor the status of broadband infrastructure projects by making those projects trackable under the Permitting Dashboard that was established pursuant to the Fixing America's Surface Transportation (FAST) Act of 2015. The Permitting Dashboard is "an online tool for Federal agencies, project developers, and interested members of the public to track" federal environmental reviews and authorization processes for "large or complex infrastructure projects." Additionally, the bill would establish online portals for submissions of Standard Form-299 Applications (SF-299s), which are standard forms required by federal land management agencies in applying for access to rights-of-way, leases, licenses, or permits involving federal lands. 

 

Furthermore, the CLOSE THE GAP Act includes exemptions from the National Environmental Policy Act for broadband infrastructure on federal lands that previously received permit approval as well as exemptions from NEPA and the NHPA for collocations of radio towers on existing towers as well as for removal or replacement of radios on existing towers. These exemptions and others included in the bill would reduce likely unnecessary permitting expenses and delays in building out broadband infrastructure.

 

The permitting process reforms included in the CLOSE THE GAP Act are particularly important in western states like Wyoming and Arizona, where large geographic areas are designated as federal lands. In the past few years, Congress has dedicated over $100 billion to expanding access to broadband services, including about $65 billion in the Infrastructure Investment and Jobs Act of 2021. In order to help ensure that those substantial sums are spent timely and efficiently to bring broadband access to unserved and underserved areas, improved permitting processes should be a priority of Congress. Senators Barrasso and Sinema are to be applauded for introducing the bill. The Senate should give the legislation timely consideration. 

 

The House of Representatives has pending legislation that would streamline permitting processes for broadband deployments on federal lands. For more, see my FSF Blog post from April 23 of this year, "Subcommittee Looks at Legislation Promoting Broadband Infrastructure Buildout," and my May 2023 post, "House Committee Passes Reforms for Broadband Infrastructure Siting on Federal Property." 

 

(Note: A Senate bill number for the CLOSE THE GAP Act has yet been provided. This post will be updated with the number and link to the filed bill when it is made available.) 

House Committee Passes Reforms for Broadband Infrastructure Siting on Federal Property

At its May 24 markup hearing, the House Energy and Commerce Committee passed, with unanimous votes, five bills intended to streamline permit processing for constructing infrastructure for broadband use on federal land and property: 

The Standard Fees to Expedite Evaluation and Streamlining Act (Standard FEES Act), if passed by Congress, would direct the General Services Administration (GSA) to establish a common fee schedule for applications to build communications sites on federal property. The Act would require each executive agency to adopt regulations that align with the common fee schedule. 

 

The Expediting Federal Broadband Deployment Reviews Act would authorize the NTIA to establish an interagency "strike force" to ensure that each Federal land management agency "prioritizes the review of requests for communications use authorizations." The strike force would conduct periodic calls among those agencies and monitor their progress. And within 270 days after the Act becomes law, the NTIA would be required to submit to Congress a report on "the effectiveness of the strike force in ensuring that Federal land management agencies prioritize reviews of requests for communications use authorizations. 

The Federal Broadband Deployment Tracking Act would require the NTIA to submit to Congress a plan for the agency to track requests for communications use authorizations on federal property and provide transparency to applications regarding the status of their applications.

 

The Deploying Infrastructure with Greater Internet Transactions and Legacy Applications (DIGITAL Applications Act) would require the Interior and Agriculture Departments to set up online portals to accept, process, and dispose of common form applications to deploy communications facilities on federal property. 

 

The Facilitating DIGITAL Applications Act would require the NTIA to provide Congress with reports on whether the Interior and Agriculture Departments have, in fact, established online portals for accepting form applications.  

 

Taken together, these bills have the potential to streamline application processes for construction of broadband facilities and to improve broadband coverage across America. Although many reforms to broadband infrastructure siting processes have focused on state and local regulatory barriers to building and significantly upgrading facilities, the foregoing reform bills passed by the House Energy and Commerce Committee direct efforts to deployments on federal property. This is a needed area of attention. And reforms targeting infrastructure siting on federal property do not present the structural federalism and local control issues that frequently are posed by federal preemption of state laws. The House Energy and Commerce Committee deserves credit for addressing communications infrastructure siting on federal property, and the House of Representatives should now do its part to advance these bills. 

Subcommittee Looks at Legislation Promoting Broadband Infrastructure Buildout

On April 19, the U.S. House Communications & Technology Subcommittee held a hearing titled "Breaking Barriers: Streamlining Permitting To Expedite Broadband Deployment." On the legislative agenda for the hearing was some 30 Republican discussion draft bills and two Democratic bills. The subcommittee's attention to the importance of policies that promote the construction and upgrade of broadband infrastructure – and that eliminate unreasonable barriers to building new facilities and upgrading existing ones – is welcome.

No doubt there are geographic, population, and other economic conditions that play into timely broadband deployment. But careful attention to permitting and other regulatory policies regarding wireline and wireless broadband infrastructure buildout should be a component of a pro-market, pro-innovation, pro-investment federal policy for encouraging broadband access for all Americans.

Information about those legislative measures is contained in the hearing memo that available on the subcommittee's webpage. The high number of draft bills and bills precludes specific discussions particular each one, but several such bills previously have been introduced in Congress, at least in substantially similar form. The legislation under review at the hearing included streamlining the approval process for deploying infrastructure on federal lands, imposing shot clocks for decisionmaking on infrastructure permit applications by local permitting authorities, and legislative codification of specific infrastructure citing reforms adopted by FCC. 

 

Hopefully, the House Communications & Technology Subcommittee's hearing will be the prelude to a near-future advancement of legislation that will boost enable more timely deployment and reduce unnecessary harmful obstacles to next-gen broadband buildout. 

 

The Chairman of the House Communications & Technology Subcommittee is Rep. Bob Latta, who delivered a keynote address at the Free State Foundation's Fifteenth Annual Policy Conference – #FSFConf15 – held on March 28. Video of his keynote is available online. 

 

For publications by Free State Foundation scholars on infrastructure siting reforms, see the June 2022 Perspectives from FSF Scholars, "The FCC Should Preserve and Expand Its Broadband Infrastructure Reforms" by former FSF colleague Andrew K. Magloughlin and I. Also still very relevant today is the July 2021 Perspectives from FSF Scholars, "Real Infrastructure Opportunity for Congress: Speed Deployments of 5G Network," co-authored by FSF President Randolph May and I. Additionally, in a June 2021 Perspectives from FSF Scholars, FSF President May and I address fundamental legal issues connected to this topic in "Wireless Infrastructure Reforms Rest on Solid Constitutional Foundations: Congress Should Preempt Local Obstacles to 5G Deployment."

Strong Network Investment by U.S. Broadband Providers in Tumultuous 2020

Capital expenditures in networks and connectivity infrastructure by U.S. broadband providers totaled $79.4 billion in 2020, according to US Telecom's 2020 Broadband Capex Report. US Telecom's report was released on September 22.  

The $79.4 annual expenditure total is impressive considering the seismic economic disruptions and setbacks suffered by much of the U.S. economy in 2020. Last year's investment by U.S. broadband providers brings the total network capital investment by U.S. broadband providers since 1996 to a whopping $1.9 trillion. And as US Telecom's report points out, its estimates over the years likely are conservative since they exclude annual investment by small U.S. broadband providers as well as U.S. satellite broadband providers. Small providers and satellite providers made perhaps $2 billion in network investments in 2020. 

As I and other Free State Foundation scholars have pointed out in prior publications, continuing strong investment enabled U.S. broadband networks to successfully carry surging data traffic induced by COVID fears and government-imposed lockdowns in 2020. 

For more, see the 2020 Broadband Capex Report as well as a brief article about it by US Telecom's Mike Saperstein.  

U.S. House Committee Passes "Dig Once" Reform to Boost Fiber Buildout

As reported by John Eggerton at Multichannel News, on June 10, the House Transportation and Infrastructure Committee favorably reported the National Dig Once Act out of committee as part of the INVEST America Act. The Dig Once Act, writes Eggerton, "would require that the plastic conduit that houses fiber optic cable be included in the construction of any road being built with federal funds in areas without broadband," with broadband providers receiving notice of opportunity to use those conduits. The idea behind the bill is to expedite fiber deployment and reduce the time end expense of multiple excavations.

Leaving aside the other parts of the INVEST America Act, the policy contained in the Dig Once Act is sensible way to promote broadband access to unserved Americans. Hopefully, the 117th Congress will see fit to pass "dig once" reform as a way to promote real infrastructure in the United States. For more on the "dig once" legislation's sponsorship and history, see John Eggerton's report.