In late December 2020, President Donald Trump signed the Consolidated Appropriations Act, 2021, a $2.3 trillion COVID relief and government spending bill that extended unemployment benefits and ensured the government kept running. Through that law, Congress allocated $7 billion to help improve connectivity in the U.S. including a new $300 million broadband deployment grant program at the National Telecommunications and Information Administration (NTIA). The aim of the Broadband Infrastructure Program (or BIP) is to support broadband infrastructure deployment to areas lacking broadband, especially rural areas. Here we share what we know about the program so far—especially from the agencies that Congress picked to keep an eye on it. 

The Broadband Infrastructure Program

Congress mandated that NTIA prioritize applications for these grants with these characteristics: 1) the greatest number of households in the service area, 2) rural areas, 3) cost-effectiveness, and 4) projects building networks providing service at download speed of not less than 100 megabits per second and an upload speed of not less than 20 megabits per second.

Demonstrating the demand for broadband deployment support, NTIA received 240 Broadband Infrastructure Program applications requesting a total of $2.8 billion. Requests ranged from about $98,000 to $56 million, with an average request of almost $12 million.

On February 25, 2022, the NTIA awarded 13 Broadband Infrastructure Program grants, totaling more than $277 million, to connect more than 133,000 unserved households in Georgia, Guam, Kentucky, Louisiana, Maine, Mississippi, Missouri, Nevada, North Carolina, Pennsylvania, Texas, Washington, and West Virginia. In June 2022, NTIA awarded Michigan State University over $10 million from the Broadband Infrastructure Program. (According to NTIA officials, that award was announced months after the others because NTIA officials worked with Michigan State to re-scope the project to align it's budget with the remaining amount available for funding.) All the grants were made to qualifying "covered partnerships" between state and local governments and fixed broadband providers.

Happy Anniversary

On March 1, 2023, the Biden Administration's Internet for All initiative is recognizing the 1-year anniversary of the Broadband Infrastructure Program awards and the work of the grantees. The 1-year mark is a big deal for grantees. By law, grantees had one year after receiving their awards to obligate their funds. So the March 1 event should reveal what progress awardees made in a very short time.

Congress also required reports from awardees that were due at the 1-year mark, reports that:

• Describe how the awardee used the funds;
• Certify that the awardee complied with the program requirements including
  • a description of each service provided with the grant funds; and
  • the number of locations or geographic areas at which broadband service was provided using the grant funds; and
• Identify each subgrantee that received a subgrant  and a description of the specific project for which grant funds were provided.

Program Oversight

Congress included oversight provisions in the law requiring the Inspector General of the Commerce Department (OIG), which is led by Inspector General Peggy E. Gustafson, and the U.S. Government Accountability Office (GAO) to report regularly on the Broadband Infrastructure Program with an eye on addressing waste, fraud, and abuse, if any.

Inspector General Oversight

The Office of Inspector General (OIG) seeks to improve the efficiency and effectiveness of the Department of Commerce's programs and operations. OIG also endeavors to detect and deter waste, fraud, and abuse. OIG monitors and tracks the use of taxpayer dollars through audits, inspections, evaluations, and investigations. The Inspector General keeps the Secretary of Commerce and Congress informed about problems and deficiencies relating to Commerce's activities and the need for corrective action.

In December 2022, Senators John Thune (R-SD) and Roger Wicker (R-MS) publicly criticized Gustafson for not delivering reports on the NTIA's Tribal Broadband Connectivity Program which has reporting requirements that are similar to the Broadband Infrastructure Program. However an October 2022 OIG report, Top Management and Performance Challenges Facing the Department of Commerce in Fiscal Year 2023, identified two priorities to ensure prudent financial management and oversight of NTIA's broadband infrastructure funding programs:

• Acquiring and maintaining sufficient staff with proficiency to ensure proper oversight and use of funds; and
• Implementing appropriate measures to prevent, detect, and report potential fraud and hold grantees, subgrantees, contractors, and subcontractors accountable for performance.

The OIG said NTIA will need to adequately specify in each of its contracts and grants all material qualifications, requirements, and performance goals and ensure they flow down to any subgrantees and subcontractors. Each contract and grant should also include provisions allowing NTIA to recover funds in the event of noncompliance. While the compliance obligation rests with the awardees and subawardees, government personnel—such as program officers, grants officers, and contracting officers—should communicate to all awardees and subawardees the importance of 1) complying with contract and grant requirements, 2) preventing and detecting fraud or noncompliance, and 3) reporting any suspected fraud or reckless noncompliance to NTIA and OIG.

Throughout the life cycle of the awards—from the application to the closeout phase—NTIA should, OIG stressed, require awardees and subawardees to provide reports and other information related to material qualifications, requirements, and performance goals, and formally attest to the accuracy and completeness of each submission. Without such attestations, it can be difficult to pursue certain remedies and ultimately hold awardees and subawardees accountable. NTIA will need to ensure that 1) each awardee and subawardee submission receives sufficient review and 2) any deficiencies are promptly resolved. Any instances of suspected fraud or reckless noncompliance with contract or grant requirements should be immediately referred to OIG, which may investigate further and seek criminal and civil remedies through the U.S. Department of Justice. To facilitate these potential remedies, NTIA should ensure that all contract- and grant-related information, including all information and reports submitted by the awardees and subawardees, is readily accessible.

On January 24, 2023, OIG published the Semiannual Status Report on NTIA’s Broadband Programs and reported that it had launched several projects to monitor NTIA’s broadband spending. The projects include this series of semiannual review reports as well as audits, evaluations, and investigations. A dedicated broadband oversight team will take a phased approach to conducting a series of audits focusing on broadband programs. The audits will focus on the following phases:

• Phase 1a, Implementation: staffing, application review, award process, fund disbursement, and review of existing federal funding for broadband services to avoid duplication;
• Phase 1b, Award Oversight: compliance with award policies and procedures;
• Phase 2, Funds Oversight: appropriate use of funds; and
• Phase 3, Closeout: compliance with closeout procedures.

The OIG's Office of Investigations has proactively engaged with NTIA to share best practices for improving fraud prevention and detection in broadband programs. The Office of Investigations is continuing to provide fraud awareness training to NTIA personnel and other broadband stakeholders.

Government Accountability Office Oversight

GAO, often called the "congressional watchdog,” is an independent, non-partisan agency that works for Congress. GAO examines how taxpayer dollars are spent and provides Congress and federal agencies with objective, non-partisan, fact-based information to help the government save money and work more efficiently.

In January 2023, GAO released its review of both the Tribal Broadband Connectivity Program and the Broadband Infrastructure Program. The report examined three objectives:

1. The extent to which the grant programs aligned with recommended practices for awarding grants
2. The extent to which NTIA’s grant programs’ performance goals and measures aligned with key attributes of successful performance goals and measures
3. The extent to which NTIA’s fraud risk management activities aligned with selected leading practices

1. Grant-Awarding Processes

In comparing NTIA’s grant-awarding processes for these programs to recommended practices GAO previously identified for awarding grants, the GAO found that the two programs generally aligned with recommended practices. Specifically, NTIA’s efforts generally aligned with the recommended practice on:

• Providing potential applicants information before and during the application period; 
• Administering the technical review for both programs;
• Developing and documenting a plan for identifying reviewers, assigning applications to reviewers, evaluation criteria, and recording the results of the review;
• Developing review panels consisting of reviewers with relevant expertise and training for each of the three technical review phases; 
• Conducting the technical review; 
• Notifying applicants of award decisions and providing feedback on applications to the extent allowed by Commerce guidance for grants management; and 
• Documenting the results of the technical review. 

NTIA did not meet the law's deadlines for making award decisions for both programs.  According to NTIA officials, several factors affected their timeframes for reviewing applications and announcing awards: 

• For both programs, NTIA received many more applications than expected.
• The law that created both programs also required a process that affected application review timelines. Specifically, the statute required that NTIA provide both applicants an opportunity to address any defects in the application by providing additional information or documentation to clarify or support the application before denying an application. According to NTIA officials, about 77 percent of Tribal Broadband Connectivity Program applications required applicants to address defects in the application during the first review phase. This process delayed these applications in moving to the next review phase.
• For the Broadband Infrastructure Program, NTIA officials facilitated a challenge process allowing broadband service providers to report whether there is existing service in applicants’ proposed service areas and giving applicants an opportunity to respond to the claim of existing service to revise the proposed service areas as needed.

During the application review process, NTIA took steps to communicate the moving timeline for announcing awards.

2. Performance Goals and Measures

NTIA identified a single performance goal for the Broadband Infrastructure Program, along with an associated performance measure (1):

• Performance Goal: By the end of September 2023, fund projects, when completed, will provide at least 130,000 households in unserved areas (less than 25 megabits per second (Mbps) download and 3 Mbps upload) with affordable broadband service through the Broadband Infrastructure Program.
• Performance Measure: Number of unserved households with access to broadband service.

GAO determined that NTIA’s performance goals and measures for both programs aligned with some but not all of the key attributes of successful performance goals and measures. For BIP, GAO determined that:

• The performance goal and measure reflect what is to be observed without significant bias or manipulation.
• The performance goal and measure reflect the primary function of the program.
• The performance goal and measure reflect Department of Commerce and NTIA goals to expand access to broadband and digital opportunities.
• The performance measure aligns with the attribute.

But GAO also determined that the performance goal includes the term “affordable” which is not measurable and quantifiable as stated. GAO recommended that should ensure the performance goal is quantifiable and measurable by defining broadband affordability.

As GAO notes, NTIA agrees with this recommendation and is now relying on its definition of broadband affordability as adopted for its Broadband Equity, Access, and Deployment (BEAD) Program. NTIA says that low-cost broadband service options should address, at a minimum:

1. All recurring charges to the subscriber, as well as any non-recurring costs or fees to the subscriber (e.g., service initiation costs);
2. The plan’s basic service characteristics (download and upload speeds, latency, any limits on usage or availability, and any material network management practices;
3. Whether a subscriber may use any Affordable Connectivity Benefit subsidy toward the plan’s rate; and
4. Any provisions regarding the subscriber’s ability to upgrade to any new low-cost service plans offering more advantageous technical specifications.

NTIA offers five traits of what could be called an affordable broadband service:

1. Costs $30 per month or less, inclusive of all taxes, fees, and charges if the subscriber does not reside on Tribal Lands, or $75 per month or less, inclusive of all taxes, fees, and charges if the subscriber resides on Tribal Lands, with no additional non-recurring costs or fees to the consumer;
2. Allows the end user to apply the Affordable Connectivity Benefit subsidy to the service price;
3. Provides the greater of (a) typical download speeds of at least 100 Mbps and typical upload speeds of at least 20 Mbps, or the fastest speeds the infrastructure is capable of if less than 100 Mbps/20 Mbps or (b) the performance benchmark for fixed terrestrial broadband service established by the Federal Communications Commission;
4. Provides typical latency measurements of no more than 100 milliseconds; and
5. Is not subject to data caps, surcharges, or usage-based throttling, and is subject only to the same acceptable use policies to which subscribers to all other broadband internet access service plans offered to home subscribers by the participating subgrantee must adhere.

3. Fraud Risk Management

GAO's Fraud Risk Framework focuses on preventive activities which generally offer the most cost-efficient use of resources. The framework recommends designating a single entity to design and oversee fraud risk management activities. For the Tribal Broadband Connectivity Program and the Broadband Infrastructure Program, NTIA and Department of Commerce officials have identified seven offices with roles in programmatic and financial oversight. NTIA took a similar, multiple-office approach for a previous broadband program it administered, and NTIA believes the approach is appropriate and sufficient.

The Fraud Risk Framework also recommends that a dedicated, lead entity comprehensively identify and assess fraud risks through a fraud risk assessment. Instead, based on previous experience, NTIA has identified inherent fraud risks that affect the program including awardees not having proper financial controls in place and awardees not understanding allowable uses of funds.

GAO also faults the NTIA for not assessing the likelihood and impact of inherent fraud risks, determining fraud risk tolerance, examining the suitability of fraud controls, or documenting the fraud risk profile for the Tribal Broadband Connectivity Program and the Broadband Infrastructure Program. But NTIA created some controls—both pre-award and post-award—that could help manage fraud risks. In the pre-award phase, the grant-servicing agencies—the National Oceanic and Atmospheric Administration (NOAA) and the National Institute of Standards and Technology (NIST), both of which also are part of the Department of Commerce—check applicants that passed programmatic review for certain fraud risks such as prior misconduct, performance issues with other federal contracts, and debt. Following the award announcement, NTIA conducts a variety of oversight and other post-award activities that may help manage fraud risks. For example, NTIA created post-award risk assessment and monitoring plans for each program, whereby NTIA staff will identify risks associated with each awardee’s ability to complete the project. The risk assessment, based on information such as organizational capacity, will determine the level of monitoring each awardee will need. In addition, NTIA provides each awardee with a mandatory training; assigns each awardee a program officer to monitor projects through desk reviews, site visits, and other activities; and provides an awardee handbook that includes information on reporting potential waste, fraud, and abuse. According to NTIA officials, they believe that their current approach, which includes assessing risk at the awardee level, is sufficient because any failures would happen at the awardee level.

NTIA is also creating a risk management council to provide oversight across all its broadband funding programs. The council will identify, assess, and respond to any risks to program goals and objectives as well as defining risk tolerance for the programs.

BIP and the Broadband Oversight Agenda

As we noted last month, House Republicans are promising rigorous oversight of the NTIA in the 118th Congress, with a focus on its administration of broadband grant programs. With tens of billions of dollars to distribute to states to support broadband adoption and digital equity, NTIA has a huge task implementing the Infrastructure Investment and Jobs Act. Its work so far on the Broadband Infrastructure Program indicates NTIA is on the right track.

Notes:

1. Of note: As of August 2022, NTIA officials said they were in the process of developing more goals and measures for BIP. However, this is not consistent with the agency’s own regulations.

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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