A message from Brownstein Hyatt Farber Schreck, LLP.
By: Michael Pryor and Melissa Thevenot
Broadband access disparities across rural areas of the country, particularly on tribal lands, is a pervasive problem in need of solution. The ongoing COVID-19 pandemic has highlighted the critical importance of access to broadband connectivity, which enables remote classroom, telemedicine and telehealth programs needed to deliver education and health care virtually as in-person services are limited or unavailable. The lack of broadband availability on tribal lands is not a new problem, however, and the significant lag behind urban areas and even other rural areas in the level of broadband access has been detrimental to economic development and educational opportunities for tribal populations.
The deployment of broadband networks is a capital-intensive undertaking that becomes cost prohibitive when seeking to connect homes and businesses across vast, remote and often difficult terrains with population densities on the order of two customers per square mile, as found in some tribal areas. Funding through various federal programs has been deployed in an attempt to address some of these fundamental challenges of building reliable broadband networks, but increasing broadband availability on tribal lands still faces significant hurdles. As reported by the Federal Communications Commission (FCC), these challenges include complex permitting processes, jurisdictional issues involving states and sovereign tribal governments, lack of necessary infrastructure, and a predominance of residential, rather than business, customers. One major challenge is obtaining an accurate picture of existing broadband deployment. Based on directives from Congress and new funding, the FCC has launched a significant new effort to more accurately identify households and businesses that lack access to broadband at acceptable levels.
More targeted relief is on the way. The past several months have seen a number of new funding opportunities for the deployment, adoption and affordability of broadband services on tribal lands. This article provides a quick update on these various opportunities.
Update on Tribal Broadband Funding Opportunities
Tribal Broadband Connectivity Program
Last December’s Consolidated Appropriations Act (CAA) appropriated $1 billion for grants for the deployment of broadband on tribal lands and expanded access to remote learning, telework and telehealth resources. The National Telecommunications and Information Administration (NTIA), which will oversee the program, plans to release a notice of funding opportunity this spring. This notice will contain details regarding the program and how to apply, and will trigger a 90-day window in which to file applications. Tribes interested in applying should be developing project plans. NTIA held several days of consultations with tribes and held a webinar on this and other broadband programs established by the CAA. It will hold another webinar on April 21. More information can be found on NTIA’s BroadbandUSA website.
Emergency Broadband Benefit Program
The CCA also established a $3.2 billion Emergency Broadband Benefit Program to help eligible households pay for internet access services offered by participating broadband providers. The program will provide up to $75 per month for households on tribal lands and $50 for eligible households in other areas. The FCC has issued an order implementing the program, which is available here. The FCC announced that more than 300 broadband providers are interested in participating. Tribes should contact providers serving their members to ensure that the provider will participate.
Assistance for Home Learning
The recently enacted American Rescue Plan Act (ARPA) includes $7.2 billion to help students and school staff purchase necessary equipment, such as laptops and access to broadband services to enable learning from home. The program will not fund construction of new networks, but will finance the deployment of WiFi hotspots in students’ neighborhoods. The program will reimburse 100% of the reasonable costs of eligible equipment and services. The FCC has issued a notice seeking comment on implementation of the program, including whether to reimburse schools for costs already incurred to facilitate home learning. The notice is available here. Initial comments were due April 5 and reply comments on April 23, 2021.
States May Use ARPA Funds for Broadband
The ARPA appropriated $20 billion for tribal governments to fund a wide range of COVID-19-related uses, including to make necessary investments in broadband infrastructure. To the extent practicable, the Department of the Treasury must disperse the funds to tribes by May 10, 2021. Of this amount, $1 billion is to be allocated among tribes equally, and $19 billion in a manner to be determined by the Department of the Treasury.
ARPA also included an additional $10 billion for states, territories and tribal governments for critical capital projects “directly enabling work, education, and health monitoring, including remote options” in response to the COVID-19 health emergency. Of this amount, $100 million must be paid in equal shares to tribal governments and the state of Hawaii, where each tribal government must receive at least $50,000. An application process for grants from the capital projects fund must be established within 60 days of enactment.
Share Your Broadband Experience
The inaccuracy of existing broadband maps in identifying unserved or underserved tribal areas has been a major source of concern. The FCC is undertaking an effort to develop better maps that show more accurately where broadband service is or is not available, including obtaining data directly from the public. To facilitate this effort, the FCC has opened a portal to allow persons to share their broadband experience. More information is available here.
Broadband Investment Is a Key Component in Proposed Infrastructure Packages
Broadband is expected to be a key component of any infrastructure package Congress considers this year. Broadband proposals in current House infrastructure bills include allocation of $80 billion for broadband deployment through a series of national and state-run systems of competitive bidding to identify the most cost-efficient providers, as well as significant positive changes with respect to criteria for awarding funds to broadband projects. The Biden administration has also announced a $2 trillion infrastructure program, the American Jobs Plan, that will include $100 billion for “future proof” broadband deployment. The program aims to ensure that funds are set aside for tribal lands and that tribal nations will be consulted.
Brownstein Hyatt Farber Schreck, LLP
Michael H. Pryor - Shareholder
Michael represents cable, telecommunications and wireless companies in federal and state regulatory proceedings, litigation and transactions. He has particular expertise in advancing clients' positions in complex rulemakings and regulatory adjudications. He also works extensively on matters involving the Telephone Consumer Protection Act.
Melissa L. Thevenot - Associate
Melissa Thevenot brings a history with tribal organizations and transactional matters to her gaming practice. She has experience with advising Indian gaming enterprises on compliance with the Indian Gaming Regulatory Act, fee-to-trust applications and acquisitions for tribal land recovery, federal recognition and Indian lands gaming eligibility, developer agreements and researching and preparing trial documents.