On September 9^th I testified to the House Subcommittee on Communications and Technology at a hearing entitled “From Introduction to Implementation: A BEAD Program Progress Report. (My testimony can be found here.) The hearing, in a sense, was designed to convict the Biden Administration of administrative negligence in its handling of the BEAD program. When the hearing ended, my long dormant lawyer genes wanted to give a closing argument summarizing the hearing. Of course, Congressional hearings allow for no such thing. But if they did, here is what I would have said.

Ladies and Gentlemen of the Jury,

Let us start where there was unanimity. Every member of the Subcommittee and every witness supported the idea that the U.S. should make high-speed broadband universally available and affordable. That is, the hearing was not a debate over the mission but rather, how the country is doing in achieving that mission.

As to that debate, the Republicans basically leveled four charges against the Biden Administration to support their claim of negligence.

As to the first two, they proved nothing and largely folded their tents. But most remarkably, as to the last two, their own witness testified against them.

Let’s take the counts one by one.

First Count: BEAD is Taking Too Long. Verdict: Not Guilty on Account of Congressional Intent

The first count is that the BEAD program has taken too long to get money out for deployment. While this charge featured prominently in opening statements, there was little said about it during the hearing. And there is a good reason for that. The biggest impediment to progress was the time it took—more than half the time since Congress authorized BEAD—for the Federal Communications Commission to create a good map. And the reason Congress required a good map was because the Trump FCC used maps for the 2020 Rural Deployment Opportunity Fund (RDOF) auction—an auction timed, as Ranking Member Pallone noted, to assist Trump’s re-election effort—that were so bad that Congress reasonably wanted the next big program to use maps that reflected reality.

Further, the Republicans had no answer for what they knew to be true; that the Biden Administration had been able to deliver far more rural broadband (through such programs as the Capital Projects Fund) than the Republicans had done, that Republicans had actually asked NTIA to slow down some of its processes, and that the principal causes of the time the BEAD program has taken to be able to fund deployments stem from Congress’ desire to avoid the many problems of waste, fraud and abuse that plagued the 2020 RDOF auction and other deployment programs. Further, as Rep. Pallone also pointed out, if Trump is elected and implements Project 2025, there are likely to be further delays.

In a sense, the timing argument was akin to a college football coach whose team had lost 50-14 holding a press conference to argue that one should only look at the fourth quarter where his team outscored the opposition 14-0. No coach would make that argument and the Republicans were wise to retreat from it.

Count Two: BEAD is Violating “Technology Neutrality”. Verdict: Not Guilty

The second count is that the BEAD program has not honored the principle of “technology neutrality.” While leveling the charge, again, the evidence was lackluster at best. For one thing, the Republicans had to admit that NTIA was taking steps to assure that states could choose the technology they deemed most appropriate to address their broadband deficits, given their financial allocations. For another, while NTIA expressed a preference for fiber—for reasons well-articulated by the witness representing the rural telephone association—states always had the ability to use non-fiber technologies if necessary to connect all the unserved areas.

Count Three: BEAD too Friendly to Labor. Verdict: Not Guilty

The third count is the allegation that the BEAD program has problematic requirements related to labor. The problem for the Republicans is that while they complained, their own witness, Misty Ann Giles, the head of the Montana broadband office, a Republican who moved from working for a Republican Governor in Georgia to a Republican Governor in Montana, testified that she had worked out an acceptable plan with NTIA on the labor issues. That left the Republicans in the position of arguing that while there wasn’t a problem in practice there might be one in theory, not exactly a compelling accusation.

Count Four: BEAD is Engaging in Price Regulation. Verdict: Not Guilty

The fourth count, and the one they pressed most assiduously, was that the BEAD program is illegally and unwisely engaging in “price regulation.” Here, the Republicans never challenged the facts laid out in testimony that 1) an affordability requirement in a grant is not the same as price regulation, 2) under both Democrats and Republicans, the FCC always imposed an affordability requirement as a condition for accepting government subsidies for network deployments, and 3) without that a condition, the ISP would price like a monopolist, charging fees unaffordable to many, thus leaving many offline, a situation contrary to the state Congressional intent.

But the chef’s kiss of the hearing again come from Ms. Giles. She reported that based on the economic study the state had done, her office proposed a price plan of $70 and that NTIA had agreed. So, despite the Republican handwringing, their own witness testified that NTIA had not created a roadblock with the affordability criteria.

To her credit, Ms. Giles did not answer any question in a partisan manner but honorably reported her experiences running the Montana broadband office. So, while some may have wished her to ramp up the invective against NTIA, she did not do so.

And she would not have been a good witness if she had. After all, when interviewed a few weeks ago, she was asked what her biggest problems were. She did not say NTIA or the rules governing BEAD. She identified geography, workforce, and supply chain.

And to their credit, members on both sides of the aisle mentioned other issues that have impeded progress achieving the goal of universal broadband access and affordability. These include such issues as permitting, workforce, supply chain, the coordination of federal programs, and, most importantly, the economic and legal challenges facing the Universal Service Fund. The Democrats also raised economic reasons why the expiration of the Affordable Connectivity Program had caused significant damage to the BEAD program and progress in achieving the goal of universal access and adoption. The Republicans never challenged those arguments.

In looking at the plethora of issues keeping our country from accelerating the achievement of a common mission, it would be clear to any fair observer of the hearing that, as Shakespeare wrote, “the fault, dear Brutus, lies not in our stars but in ourselves.” That is, while there were references to draft legislation and bi-partisan task forces, the simple truth is that this House of Representatives has passed nothing that has moved the ball closer to the end zone.

Ladies and Gentlemen of the jury, the Republicans were totally in their rights to ask the questions they asked and raise the questions they did. Further, the BEAD implementation has not been perfect. No implementation ever is. Further, we should be encouraged by the bipartisan agreement on the goal and the need to work together to address such problems as permitting, workforce and universal service reform. But in looking at the evidence provided in the hearing, one must conclude that the Administration has diligently moved forward in its efforts to achieve the bipartisan universal service goal, including having to spend considerable time and effort cleaning up the mess that a Republican FCC made four years ago and making sure that such a mess does not occur again.

Blair Levin is the Policy Advisor to New Street Research and a nonresident senior fellow at Brookings Metro​. Prior to joining New Street, Blair served as Chief of Staff to FCC Chairman Reed Hundt (1993-1997), directed the writing of the United States National Broadband Plan (2009-2010), and was a policy analyst for the equity research teams at Legg Mason and Stifel Nicolaus. Levin is a graduate of Yale College and Yale Law School.

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