On November 4, Senate Majority Leader Mitch McConnell indicated he is willing to resume negotiations on COVID-19 relief legislation before the end of the year (he had previously indicated no legislation is possible before the end of the year). Whether this would be standalone legislation or part of a necessary government funding package (budgeted funding ends December 11) remains to be seen. It is possible such legislation could include funding for broadband-related programs, such as the COVID-19 Telehealth Program.
National Telecommunications and Information Administration (NTIA)
The monthly NTIA Webinar on November 18 will address How Broadband Enhances Local Economies. The October webinar addressed: Digital Inclusion and K-12 Education: The Impact of COVID-19 on Students and Educators; archived webinars are here. The October BroadbandUSA Newsletter includes notable state broadband news items from Colorado, Idaho, Kentucky, North Carolina, among others. Although not in the newsletter, many states are increasing funding for rural broadband, with and without CARES Act monies, including Kansas and Michigan.
NTIA hosts a searchable database featuring 50 federal broadband funding opportunities across a dozen federal agencies. The NTIA Broadband USA main page features a state-by-state summary of state broadband programs (scroll down to the map and click on a state). NTIA has released pilot results of its National Broadband Availability Map (NBAM) which was authorized by Congress in 2018. The NBAM initially covered eight states, but now includes 22 states total: California, Colorado, Georgia, Illinois, Indiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, North Carolina, Oregon, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The NBAM incorporates Federal Communications Commission (“FCC”) Form 477 data along with broadband data from third-party sources including other federal agencies. Because the NBAM includes both public and proprietary data, coverage details are available only to state and federal partners and not the general public (contact email@example.com for more info).
USDA – Rural Utilities Service
The RUS Community Connect Grant program is open and accepting applications through December 23, 2020. Grant awards can range from $100,000 up to $3 million and can be used for the “construction, acquisition, or leasing of facilities, including spectrum, land or buildings used to deploy service at the [a minimum of 25 Mbps down/3 Mbps up] to all residential and business customers located within the Proposed Funded Service Area . . . .” Applicants must provide free broadband service for two years to “Essential Community Facilities” in the funded service area. See the link above for more details. Proposed ReConnect projects can be viewed here (registration required); awardees are identified here; proposed and funded projects are depicted on an interactive map here.
The FCC’s just-approved $9 billion 5G Rural Fund (see item below) notably includes a $1 billion set-aside for agricultural use in Phase 2. Meanwhile, farms are already using private LTE networks with CBRS spectrum, including greenhouse monitoring in Missouri and supporting drone-mounted cameras to make real-time decisions on herbicide applications in North Dakota.
NTIA’s September 2020 webinar on precision agriculture is available here. The most recent meeting of the FCC’s Precision Agriculture Connectivity Advisory Task Force was October 28 and can be viewed here. Background and links to prior meetings are available here. The April 2019 USDA report on rural broadband infrastructure and next-generation precision agriculture is available here.
COVID-19: New Telehealth Program and E-rate & Rural Health Waivers
The FCC in April 2020 established the COVID-19 Telehealth Program in response to Congress appropriating $200 million in funding for telehealth to the FCC as part of the CARES Act. The FCC stopped accepting applications in late June and on July 8 announced it had fully committed to the program. The final list of awardees are available here (Excel; PDF). Under that program, successful applicants received funding commitments that they could claim by demonstrating the purchase of eligible goods or services by September 30, 2020. The FCC on September 28 extended that purchase deadline until December 31, 2020.
The Commission on March 18, 2020, waived the gift rules for both the E-rate and RHC programs through September 30, 2020. The scope of this waiver is broad, permitting (¶ 7):
service providers to offer [free of charge], and eligible RHC and E-Rate entities to solicit and accept, improved capacity, Wi-Fi hotspots, networking gear, or other things of value to assist health care providers, schools, and libraries as well as doctors and patients, teachers, students, school administrators, and librarians and patrons during the coronavirus outbreak. These gifts could include but are not limited to free upgrades to connections, connected devices, equipment, and other services for RHC program participants who provide care via telemedicine and free broadband connections, devices, or other services that support remote learning for students and teachers who will be taking classes at and providing instruction from home as a result of COVID-19.
On September 3, the Commission extended the waiver until December 31, 2020. The extension included waivers of the information request deadlines in both programs, but not deadlines for filing appeals and other matters. (The Commission previously extended programmatic deadlines for filing funding applications, appeals, invoicing, service delivery, as well as waived certain rules regarding contract extensions in E-rate and RHC.) If you intend to take advantage of any waivers, please consult these orders very carefully.
On October 14, 2020, the FCC provided clarification and guidance on how to calculate student-counts for purposes of the new Category 2 budget rules. From September 16 to October 16, the Commission opened a special E-rate filing window to support Category 1 Internet Access or data transmission only – allowing schools to seek additional funding for the funding year 2020 (July 1, 2020 through June 30, 2021) without further competitive bidding. The FCC recently announced $1.3 million in funding was awarded to the first wave of second-window applicants (291 schools in 32 states). Funds for Learning has released its annual E-rate Trends Report for 2020, reflecting spending and survey data through July 17, 2020.
Rural Health Care
We understand the FCC has instructed USAC to clear the backlog of unapproved Rural Health Care (RHC) applications from FY 2019 and to release applications that have been unofficially held from prior years, assumed to be based on disputes over the appropriate “rural rate.” This push to clear the backlog may be coming at the expense of resources devoted to new funding applications for FY 2021. Paradoxically this means that, although the new rules allowed competitive bidding to start this past July 1 (instead of the upcoming January 1), many may not be able to commence their applications early because of USAC delays approving eligibility and RFPs. This and other issues are likely to be discussed at SHLB’s RHC workshop on November 6: Success Strategies for Obtaining RHC Support (free for SHLB members; $50 for non-members).
In February 2020 the FCC sought public comment on the three narrow issues remanded by the DC Circuit: jurisdictional questions over pole attachment regulation, impacts on public safety, and funding broadband through the Lifeline Program (comments here). At its October 2020 open meeting, the FCC approved along party lines an Order on remand addressing the Court’s concerns without taking further action.
No parties ultimately sought Supreme Court review of the October 2019 DC Circuit decision upholding the FCC’s 2017 repeal of net neutrality rules (the deadline to seek review was in July after the DC Circuit in February had declined to re-hear the case en banc). As a result, voluntary stays in the state-specific federal litigation have lapsed. Recall the DC Circuit reversed the FCC in asserting blanket preemption of state-specific rules, but this did not preclude state-by-state preemption claims based on specific conflicts with federal law.
In addition to California and Vermont (litigation updates below), four other states have enacted some form of net neutrality law: Colorado, Maine, Oregon, and Washington, none of which have yet been challenged by industry or the federal government. Potential litigants may be looking to the California and Vermont cases first to see what those courts do.
- Eastern District of California. In October 2018, SB 822, the California Internet Consumer Protection and Net Neutrality Act of 2018 was challenged in federal district court in California by the DOJ and several industry groups in a separate suit. DOJ had sought a preliminary injunction but the court agreed to a request by all parties to stay the case after California agreed not to enforce the law pending final resolution of Mozilla v. FCC. The DOJ on August 5, 2020 filed a renewed motion for a preliminary injunction; the state responded on September 16; reply briefs by the DOJ and industry groups were filed on October 14.
- Vermont District Court. In October 2018 the same industry groups – American Cable Association (ACA), CTIA – The Wireless Association (CTIA), NCTA – The Internet & Television Association (NCTA), and USTelecom challenged Vermont’s net neutrality law and executive order in federal district court there and in January 2019 sought summary judgment. The parties in March 2019 agreed to stay further proceedings pending a final resolution of Mozilla v. FCC. DOJ and industry groups also renewed their challenges to the Vermont law after the stay expired, however, the parties have agreed to a new stay pending the outcome of the motions for injunctions in the California litigation.
The National Conference of State Legislators (NCSL) features a summary of net neutrality efforts by the state for 2020 here (updated March 27, 2020). Note this list does not identify current laws, only current efforts to pass new laws.