Experts: Withholding BEAD Funds Because of State Affordability Laws On Shaky Legal Ground

Legal analysts are questioning the recent assertion by National Telecommunications and Information Administration head Arielle Roth that the NTIA can legally withhold federal broadband deployment funds from states that have laws enforcing net neutrality or that have enacted affordable broadband legislation similar to New York’s Affordable Broadband Act. The Infrastructure Investment and Jobs Act explicitly calls for BEAD-eligible ISPs to offer at least one “low-cost broadband service option for eligible subscribers,” it also says “nothing in this title may be construed to authorize the Assistant Secretary or the National Telecommunications and Information Administration to regulate the rates charged for broadband service.” But the law says nothing about what state lawmakers can do. “In short, I think the current law on this—as established by the 2nd and 9th Circuit—is pretty clear that, absent a source of authority to preempt them, states can regulate and oversee the provision of broadband service within the state, including through net neutrality and affordability laws,” said Stephanie Weiner, a senior fellow at Georgetown Law School Institute for Technology Law & Policy. Weiner—who worked as a legal advisor at the Federal Communications Commission from 2013 to 2016 during which she helped author the Title II order and most recently served as chief counsel at NTIA—added that “while NTIA has considerable discretion to impose certain terms and conditions on the receipt of BEAD funds, it must have legal authority to impose those conditions.” Blair Levin, a former FCC Chief of Staff and now New Street Research policy advisor, said the timing of Roth’s new requirement that "NTIA will require states to have providers certify in writing that they will not require or take additional federal subsidies—including operational subsidies—to complete or operate their BEAD projects" was problematic.  He noted that “if, when I was at the FCC, I had suggested changing the rules related to a spectrum auction after the bidding, but before the license award, I would have been laughed out of the room—and I would have deserved far worse.” Further, while Blair deferred to others on the precise legal analysis, Roth's assertion that the NTIA could preempt states on broadband legislation struck him as odd as, "it is hard to understand putting non-statutory requirements on states after criticizing the Biden administration for putting non-statutory requirements on states.”