American Rescue Plan and For The People Act

A massive COVID aid package contains billions for technology programs. A follow on bill may contain more than $100 billion for other programs. A Democratic bill to revamp election law and policy would bolster election cybersecurity.  

Democrats in Congress may pass their $1.9 trillion COVID-19 package as soon as today, fulfilling one of President Joe Biden’s ambitions for the beginning of his presidency. The “American Rescue Plan Act of 2021” (H.R.1319) contains a few provisions that will increase funding for discrete technology programs but not broadband programs. It is expected the next reconciliation package that will focus on infrastructure will include broadband funding; however, talks are at an early stage, and it is unclear how much funding will ultimately be made available for closing the digital divide in the U.S. Nonetheless, there are funds for a handful of technology programs amidst the $1.9 trillion being appropriated by the package.

H.R.1319, as modified by the Senate, would provide the following funds for technology programs:

• $7.17 billion for the Federal Communications Commission’s (FCC) E-Rate program through the establishment of an Emergency Connectivity Fund to provide assistance for students and schools to buy devices or establish service to aid online learning
• $1 billion for the recently established and underfunded Technology Modernization Fund that would essentially loan funds to agencies to replace and refresh information technology (IT).
• $650 million for the Cybersecurity and Infrastructure Security Agency “for cybersecurity risk mitigation”
• $200 million for the United States Digital Service

Talks have already begun on the next package that will likely provide a significant boost in broadband funding among other technology programs. Last year, the House Democrats passed a package that may provide an idea of the scope and type of funding and programmatic changes the infrastructure package may have. The “Moving Forward Act“ (H.R.2) from last year would have funded a number of infrastructure policies, including, according to the press release summary:

• Delivers affordable high-speed broadband Internet access to all parts of the country by investing $100 billion to promote competition for broadband internet infrastructure in unserved and underserved communities, prioritizing those with persistent poverty. Gets children connected to remote learning, closes broadband adoption and digital skills gaps and enhances payment support for low-income households and the recently unemployed. 

Otherwise, the bill’s sponsors contended:

• The Moving Forward Act marks a transformational investment in American infrastructure that will create millions of jobs, take bold action on the climate crisis, and address disparities in urban, suburban, and rural communities across our country.
• The more than $1.5 trillion proposal rebuilds U.S. communities with infrastructure and innovation that is smarter, safer, and made to last.

The bill would appropriate $60 billion for a competitive bidding process to buildout broadband for areas without high speed service and $20 billion will be distributed to states on the basis of population for the same purpose. The package also appropriates $5 billion for the Federal Communications Commission’s E-Rate program to help libraries and schools. The bill would establish a lending facility along the same lines of the Department of Transportation’s Transportation Infrastructure Finance and Innovation Act (TIFIA) to provide secured loans, lines of credit, and loan guarantees to help a range of entities finance and build broadband networks.

The bill’s sponsors made available a section-by-section summary that described the massive bill, and here are the most significant technology provisions:

• Sec. 31101. Establishment of the Office of Internet Connectivity and Growth. Requires the Assistant Secretary of Commerce for Communications and Information to establish, within the National Telecommunications and Information Administration (NTIA), an Office of Internet Connectivity and Growth (OICG). 
• Sec. 31102. Duties. Establishes the duties of the OICG, including conducting outreach to communities in need of better access to, or adoption of, internet service, specifically through organizing regional workshops, trainings, and publications to provide guidance and insights for these communities. OICG will also be responsible for tracking all Federal money being used for both the construction and use of broadband infrastructure and will coordinate with other Federal agencies to conduct a study on the extent to which affordability is a contributing factor to the lack of broadband adoption and on ways to improve Federal subsidies to households to make broadband affordable.
• Sec. 31103. Streamlined Applications for Support.  Requires the OICG to coordinate with other Federal agencies to streamline the application process for assistance for Federal programs supporting broadband deployment and adoption.
• Sec. 31104. Coordination of Support. Requires the OICG to coordinate with other Federal agencies to ensure broadband-related support is being administered in an efficient, technology-neutral, and financially sustainable manner.
• Sec. 31121. State Digital Equity Capacity Grant Program.  Establishes the State Digital Equity Capacity Grant Program to aid States in digital equity and digital inclusion activities. States applying to receive grants must have an established State Digital Equity Plan and a designated administering entity. Grants are determined by formula and must be used within a five-year period to implement the State’s Digital Equity Plan and to pursue digital inclusion activities consistent with that plan. Appropriates $60 million for grants to States to develop their digital equity plans and $625 million is provided for grants to implement these plans. No less than five percent of the funds must be used to award grants to Indian tribes, Alaska Native entities, and Native Hawaiian organizations.
• Sec. 31122. Digital Equity Competitive Grant Program. Establishes the State Digital Equity Competitive Grant Program, which will be administered by the OICG, to award grants to local entities, tribal governments, Alaska Native entities, Native Hawaiian organizations, non-profits, anchor institutions, educational entities, and workforce development programs for digital inclusion activities. Appropriates $625 million to carry out this program, and no less than five percent of the funds must be used to award grants for Indian tribes, Alaska Native entities, and Native Hawaiian organizations.
• Sec. 31141. Additional Broadband Benefit. Establishes a broadband benefit program that entitles households with a member who qualifies for Lifeline, free/reduced school lunch, or are recently unemployed to receive a $50 benefit, or a $75 benefit on tribal lands, to put toward the monthly price of internet service. Internet service providers would be required to provide eligible households service at a price reduced by an amount up to the benefit, and those providers can seek a reimbursement from the Federal Communications Commission (FCC) for such amount. The program is appropriated $9 billion.
• Sec. 31142. Grants to States to Strengthen National Lifeline Eligibility Verifier.  Appropriates $200 million in funding to help States participate in the National Lifeline Eligibility Verifier.
• Sec. 31161. E-Rate Support for Wi-Fi Hotspots, Other Equipment, and Connected Devices. Establishes a grant program at the FCC, using the authorities that established the E-Rate program, for schools and libraries to fund connectivity for students and teachers in the digital classroom. The program could be used to fund wired and wireless broadband connections at home, and provide connected devices, including laptops and tablets, to homes of students and teachers. The program also supports mobile hotspot-lending by schools or libraries, among other things. The section appropriates $5 billion to carry out this program, of which five percent of funds is set aside for use on Tribal Lands.
• Sec. 31202. Broadband Transparency.  Requires the FCC to adopt rules to collect from service providers certain data regarding price of broadband service plans and subscription rates and data to determine the resiliency of the network in the event of a natural disaster or emergency. 
• Sec. 31203. Distribution of Data. Requires the FCC to make all data collected under Section 31202 available to other Federal agencies, State-run broadband entities, a unit of local government, and an individual conducting research for noncommercial purposes. The FCC may not share any of this data with an entity or individual unless the agency has determined that they have the capacity to properly protect any personally identifiable information contained in the data.
• Sec. 31301. Expansion of Broadband Access in Unserved Areas and Areas With Low-Tier or Mid-Tier Service.  Appropriates $80 billion to fund competitive bidding systems to build broadband infrastructure. Seventy-five percent of the funding is to be used for a nationwide system of competitive bidding to fund broadband deployment in unserved areas, defined as areas with service below 25/25 Megabits per second (Mbps), and areas with low-tier service, defined as areas with service between 25/25 and 100/100 Mbps. The remaining funds (25 percent) are to be distributed among States, by population, for States to conduct statewide systems of competitive bidding for broadband deployment in unserved areas, areas with low-tier service, and to unserved anchor institutions (anchor institutions with speeds less than 1 gigabit per 1,000 users). If a State does not have unserved areas or areas with low-tier service, funding may be used for broadband deployment in areas with mid-tier service, defined as greater than 100/100 Mbps but less than 1 gigabit per second symmetrical.
  • The section also establishes certain preferences for the projects, including where access will be expanded in unserved areas and on Tribal lands; where higher speeds than the minimum specified will be offered; where the project will result in new open access networks where providers may use certain network elements to deliver their own internet service; where the project will increase access for persistent poverty counties or high-poverty areas at subsidized rates; and where completion will happen in advance of the maximum allowed buildout of four years.  The section also establishes certain requirements for projects funded under the program, including offering broadband service that provides at least 100/100 Mbps with sufficiently low latency, offering broadband service at prices that are comparable to, or lower than, the prices charged for comparable service, and offering an affordable service plan.
  • Anyone awarded funding in the nationwide system of competitive bidding must pay wages to employees working on the project funded through this program at rates not less than those prevailing on projects of a similar character in the locality and meet prevailing Federal labor and environmental requirements.
• Sec. 31322. Determination of Eligibility and Project Selection.  Creates the Broadband Infrastructure Financing Innovation (BIFIA) program, administered by the NTIA, to provide State and local governments, public authorities, and public-private partnerships financial assistance in the form of secured loans, lines of credit, and loan guarantees for eligible broadband infrastructure financing projects. To be eligible, NTIA must determine that BIFIA funding for the project will: (a) foster partnerships that will attract private and public investment for the project; (b) enable the project to proceed at an earlier date than the project would otherwise be able to proceed or reduce the lifecycle costs; and (c) reduce the Federal contribution for the project. Preference will be given for open access projects. Applicants must be able to demonstrate that construction on the project would begin within 90 days after receiving financial assistance.
• Sec. 31401. State, Local, Public-Private Partnership, and Co-op Broadband Services. Prohibits State governments from enforcing laws or regulations that inhibit local governments, public-private partnerships, and cooperatives from delivering broadband service.
• Sec. 31501. Repeal of Rule and Prohibition on Use of NPRM. Repeals the FCC’s Fourth Report and Order, Order on Reconsideration, Memorandum Opinion and Order, Notice of Proposed Rulemaking, and Notice of Inquiry related to its Lifeline program that was adopted in November 2017. It also prohibits the FCC from finalizing a proposed rule that would cap the Universal Service Fund programs.

Other legislation that would affect technology and companies in the United States (U.S.) was recently considered. House Democrats sent the “For The People Act” (H.R.1) to an uncertain fate in the Senate, for it is quite likely all Senate Republicans will oppose the bill because it would put an end to many state election laws and practices that disadvantage traditionally Democratic constituencies. Moreover, Senate Minority Leader Mitch McConnell (R-KY) has long stood foursquare against these sorts of proposals. He and other Republicans have used the argument of state rights to justify their opposition instead of naked political advantage even though Article 1, Section 4 of the U.S. Constitution is quite clear on the power of Congress to regulate how states conduct elections:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing (sic) Senators (emphasis added.)

To be fair, if Democrats were gaining advantage from a voting system that lowered the voting numbers in Republican constituencies, they might also oppose changes to level the playing field.

Be that as it may, H.R.1 contains a number of technology-related provisions:

• States must use “individual, durable, voter-verified paper ballots” that are hand-counted or counted by an optical character recognition device
• Standards would be established for election vendors “based on cybersecurity and company ownership” and expands the grant program the Election Assistance Commission (EAC) to increase the cybersecurity of the U.S. election system
• Funds would be made available to states to replace old and insecure voting machines
• Sets a three day deadline for “qualified election infrastructure vendors” to determine whether security incidents have occurred and to report such incidents to the Department of Homeland Security (DHS) and the EAC
• Authorizes $1 billion for FY 2021 and then $175 million for 2022, 2024, 2026, and 2028
• Tasks states with preventing and deterring cybersecurity incidents involving state computerized voter registration databases
• Creates a competitive grant program for researchers to develop methods and technology that could better secure elections
• Requires DHS to maintain its designation of the election sector as a critical infrastructure
• Directs DHS to provide timely critical threat indicators to state election officials
• Tasks the Director of National Intelligence to submit a report on threats to elections and infrastructure to Congress and state officials within 6 months of an election
• Mandates that all voting systems must be tested for cybersecurity vulnerabilities at least nine months before a federal election
• Establishes the Election Security Bug Bounty Program
• Creates a duty to report foreign election interference
• Places new obligations on large social media platforms to maintain public databases of all attempts to buy political advertising costing more than $500 and to prevent foreign nationals and entities from directly or indirectly buying political advertising
• Expands current law on election communications and advertising to include many online activities, which would create new limits and reporting requirements
• Requires television broadcasters and cable and satellite broadcasters to make their best effort to block foreign nationals or entities from directly or indirectly buying political advertising

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