Now that the White House and Democrats have completed work on the “American Rescue Plan Act of 2021” (P.L. 117-2), their $1.9 trillion COVID-19 stimulus plan, they have turned to an infrastructure package. Like the American Rescue Plan Act of 2021, Democrats would use the budget reconciliation process that requires 51 votes in the Senate to pass that carries significant strings on what can be in such a bill. For example, the Senate Parliamentarian said the $15 minimum wage increase violated Senate rules on reconciliation and it was jettisoned. Consequently, if the Biden Administration and Democrats (and it will almost certainly be only Democrats as no Republicans voted for the American Rescue Plan Act of 2021), they may need to carefully consider the types of provisions they include. However, it is almost a certainty they will include significant funds for a range of technology policies such as increasing access to broadband.
As noted, there are issues related to using budget reconciliation. The so-called Byrd Rule bars generally “extraneous” provisions that are “merely incidental” to raising or cutting government spending. Additionally, under current precedent reconciliation cannot be used to fund programs funded through the annual appropriations process. Such legislation could create new programs outside the normal appropriations process, but for obvious reasons the Appropriations Committees do not like this. It is nominally the Senate Parliamentarian who decides what is allowable under the Byrd Rule. That being said, the Senate’s presiding officer gets to rule on what is “merely incidental” and other points of order raised and is not obligated to heed the Senate Parliamentarian. Consequently, a Senate Democrat or the Vice-President could deny a point of order that the Byrd Rule is being violated but those wishing to overturn the ruling need 60 votes, which would be obviously difficult if not impossible given the partisan divisions in the Senate.
Last year, the House Democrats passed an infrastructure package, the “Moving Forward Act“ (H.R.2) that 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.
Against this procedural and historical backdrop, the package is still being developed. Nonetheless, stakeholders are introducing legislation to try and shape the package and there are two packages that aim to increase broadband access throughout the United States (U.S.) They are close in terms of funding for these purposes, both at around $90-95 billion, but differ in crucial ways. Given the sponsors of these packages will be key stakeholders in determining what will go into an infrastructure package moved via budget reconciliation, it is likely the similar elements (e.g., the funding topline) will make it in the bill while there will be decisions made on the conflicting provisions. For example, both bills would provide $80 billion for high-speed broadband. Likewise, they also provide $6 billion for the Emergency Broadband Benefit Program, a newly established program at the Federal Communications Commission that is in the midst of trying to get $3.2 billion out the door. And, obviously one of the bills sweeps much wider than just broadband and has provisions on other policy areas.
All the Democrats on the House Energy and Commerce Committee introduced the “Leading Infrastructure For Tomorrow’s America Act” (LIFT America Act) (H.R.1848), which carries their desired funding and policies for the next reconciliation package Congressional Democrats and the White House are negotiating. The committee also released a section-by-section in which it explained the bill. The committee highlighted notable technology provisions, including:
- Subtitle A. Digital Equity
- This subtitle establishes new grant programs, authorized at $1.3 billion total, at the Office of Internet Connectivity and Growth (OICG) within the National Telecommunications and Information Administration (NTIA). The State Digital Equity Capacity Grant Program would aid States in digital equity and digital inclusion activities. The State Digital Equity Competitive Grant Program would 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. Both programs include a five percent minimum set aside to award grants to Indian tribes, Alaska Native entities, and Native Hawaiian organizations.
- Subtitle B. Broadband Affordability and Pricing Transparency
- This subtitle authorizes an additional $6 billion for the Emergency Broadband Benefit program at the Federal Communications Commission (FCC), which provides a discount of up to $50 off the cost of monthly broadband service for eligible households, or up to $75 for households on tribal lands. It also authorizes $200 million to help States participate in the National Lifeline Eligibility Verifier.
- This subtitle also authorizes an additional $2 billion for home internet connectivity for students, teachers, and library patrons based on the FCC’s E-rate authorities.
- Finally, the subtitle 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. It also requires the FCC to issue rules to promote and incentivize a standard format for broadband internet service providers to disclose to consumers the price and terms of their service offerings.
- Subtitle C. Broadband Access
- This subtitle would authorize $80 billion in high-speed broadband internet buildout across the country.
- Three-fourths of the funds would be awarded by the FCC through a nationwide competitive bidding process to ensure the efficient distribution of the funds to areas that don’t have high-speed broadband internet service today.
- The FCC would be required to allocate the remaining one-fourth of the funds to states, to fund broadband deployment using competitive bidding processes, to areas without high-speed broadband service. It also authorizes $500 million in additional funding for the Tribal broadband grant program at the NTIA.
- The subtitle also creates the Broadband Infrastructure Finance and Innovation Act (BIFIA) program at the NTIA. This subtitle would authorize $5 billion in federal funding for the BIFIA program to make low-interest financing available for broadband infrastructure deployment projects.
- Finally, the subtitle requires the FCC to promulgate rules to allow E-rate funds to be used to provide Wi-Fi service on school buses.
- Subtitle D. Community Broadband
- This subtitle prohibits state governments from enforcing laws or regulations that inhibit local governments, public-private partnerships, and cooperatives from delivering broadband service.
- Subtitle E. Next Generation 9-1-1
- This subtitle would authorize the Next Generation 9-1-1 Implementation Coordination Office to provide $15 billion in grants for fiscal years 2022-2026 for the deployment and implementation of Next Generation 9-1-1 services across the country. Next Generation 9-1-1 would protect American lives by making 9-1-1 systems interoperable and more resilient and by allowing callers to send text messages, images, or videos to 9-1-1 to help first responders better assess the nature of emergencies and protect callers when they can’t speak to 9-1-1 dispatchers.
- Subtitle A. Grid Security and Modernization
- This subtitle provides nearly $3.87 billion for fiscal years 2022-2026 for electric grid infrastructure, focused on grid modernization, security, resiliency, and efficiency. Funds will support infrastructure improvements to enhance energy security, smart grid technology deployment, and efficiency upgrades. The subtitle also includes funding to establish a strategic transformer reserve to speed electric grid recovery following extreme weather events.
- Subtitle D. Smart Communities Infrastructure
- This subtitle provides $850 million for fiscal years 2022-2026 to spur the development of Smart Communities infrastructure through technical assistance, grants, and training. This section authorizes the Department of Energy’s (DOE) proposed Cities, Counties, and Communities energy program to provide technical assistance and competitive grants for clean energy solutions in development and redevelopment efforts. It also funds technical assistance, provided by DOE’s national labs, to cities and towns looking to deploy smart community infrastructure. Additionally, this subtitle expands the Department of Commerce Smart Cities Demonstration Project to include small and medium cities and towns.
- The subtitle also authorizes the Clean Cities Coalition Network Program and provides $375 million for fiscal years 2022-2026 to support expanded development of alternative fuel infrastructure and expanded use of alternative fuel vehicles.
- The subtitle further provides $625 million for fiscal years 2022-2026 to reauthorize the State Energy Program and provides additional funds to support development of an electric vehicle charging network to facilitate greater use of electricity to fuel the transportation sector. It includes $500 million for fiscal years 2022-2026 for electric vehicle supply equipment for light-duty vehicles, $650 million for electric school buses, and $10 million to support the deployment of clean refrigerated vehicles.
- [Healthcare Infrastructure]
- It also reauthorizes the Hill-Burton program by providing $10 billion for fiscal years 2022-2026 for hospital infrastructure modernization and improvements. The title funds projects that will increase capacity and update hospitals and other medical facilities in order to better serve communities in need. Priority is given to projects for public health emergency preparedness or cybersecurity upgrades that will protect against cyber threats.
As mentioned, there is a rival broadband funding package being put forward by some key stakeholders in both chambers. The “Accessible, Affordable Internet for All Act” (H.R.1783/S.745) was introduced by House Majority Whip James Clyburn (D-SC) in the House and the Senate Judiciary Committee’s Competition Policy, Antitrust, and Consumer Rights Subcommittee Chair Amy Klobuchar (D-MN) in the Senate along with cosponsors. They claimed in their press release “[t]he Accessible, Affordable Internet for All Act will invest over $94 billion to build high-speed broadband infrastructure in unserved and underserved communities to close the digital divide and ensure Americans have internet connectivity to learn and work from home, access telehealth services, and stay connected to loved ones. In their section-by-section, the sponsors of the Accessible, Affordable Internet for All Act explained their bill, and here are the most relevant excerpts:
- Sec. 1101. Report. Requires the recently established Office of Internet Connectivity and Growth (OICG) within the National Telecommunications and Information Administration (NTIA) to report on the non- economic benefits of broadband service, including any effect on civic engagement, and on the extent to which beneficiaries of the Universal Service Fund receive service at the speeds required by such program.
- Sec. 1102. Study and Report on Affordability of Adoption of Broadband Service. Requires OICG 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. 1103. Authorization for Office of Internet Connectivity and Growth. Authorizes $26 million annually for operations of the OICG, including the reports required under this chapter.
- Sec. 1104. Study on Recommendations to Connect Socially Disadvantaged Individuals. —Requires the Office of Internet Connectivity and Growth to conduct a study on how existing federal programs have expanded access and adoption of broadband service for socially disadvantaged individuals.
- Sec. 1201. State Digital Equity Capacity Grant Program. Establishes the State Digital Equity Capacity Grant Program, administered by the OICG, 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. Authorizes $60 million for grants to States to develop their digital equity plans and an additional $625 million 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. 1202. Digital Equity Competitive Grant Program. Establishes the State Digital Equity Competitive Grant Program, 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. Authorizes $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. 2101. Emergency Broadband Benefit. Authorizes additional $6 billion for the recently established Emergency Broadband Benefit Program at the Federal Communications Commission (FCC).
- Sec. 2102. Grants to States to Strengthen National Lifeline Eligibility Verifier. Authorizes $200 million to help states participate in the National Lifeline Eligibility Verifier.
- Sec. 2103. Federal Coordination Between Lifeline and SNAP Verification. Requires the FCC to coordinate with the Department of Agriculture to set up automated connections between the National Lifeline Eligibility Verifier and the National Accuracy Clearinghouse for the Supplemental Nutrition Assistance Program (SNAP).
- Sec. 2201. Emergency Connectivity Fund. Authorizes additional $2 billion for the recently established Emergency Connectivity Fund at the Federal Communications Commission (FCC) to fund distance learning for K-12 students and teachers, among others.
- Sec. 2302. 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. 2303. Distribution of Data. Requires the FCC to make all data collected under Section 2202 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. 3101. Expansion of Broadband Access in Unserved Areas and Areas With Low-Tier or Mid-Tier Service. Authorizes $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 precent) are to be distributed among States, by population with a minimum guarantee for each State, 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). Both the Commission and State must first hold a system of competitive bidding exclusively for bidders offering gigabit symmetrical service.
- The section 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 the project will increase access for persistent poverty counties or high-poverty areas at subsidized rates; where the local community in the eligible area supports the project; and where completion will happen in advance of the maximum allowed buildout of three 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. All bidders must meet objective, transparent criteria upfront that demonstrates technical and operational capacity to implement winning projects.
- A minimum $100,000,000 will be allocated to each of the 50 States, the District of Columbia, and Puerto Rico, and a minimum $500,000,000 will be set aside for the recently established tribal broadband program at NTIA.
- Sec. 3203. 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. 3210. Funding. Authorizes $5 billion to carry out the BIFIA program.
- Sec. 3301. E-Rate Support for School Bus Wi-Fi. Requires the FCC to update its rules to permit Wi-Fi access on school buses as eligible for support under the E-Rate program.
- Sec. 4001. State, Local, and Public-Private Partnership Broadband Services. Prohibits state governments from enforcing laws or regulations that inhibit local governments, public-private partnerships, and cooperatives from delivering broadband service.
- Sec. 5001. Broadband Infrastructure Deployment. Creates a new “dig once” provision to ensure better coordination of transportation and broadband infrastructure projects, while ensuring State flexibility and preventing unfunded mandates. Creates a Dig Once Funding Task Force to estimate the cost of a nationwide “dig once” requirement, and to propose and evaluate options for funding such a requirement. Ensures Task Force consultation with stakeholders that represent rural communities and communities with limited access to broadband infrastructure.
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