IS OVERREACH THE REAL CRIME? Although the Senators “urged” NTIA chief Alan Davidson to address their NOFO concerns, such as prioritizing the hiring of criminals if applicable, he may ignore them as he did after a June 9, 2022 NTIA oversight hearing by the subcommittee on Communications, Media, and Broadband that raised the same objections. If so, the Senators can consider requesting a judicial review authorized by the Administrative Procedure Act (APA) to challenge the actions of the NTIA since it is a federal agency and did not provide any coherent explanation for its additions and failed to consider relevant and essential facts, amongst other subjective lobbyist-initiated requirements it included in its NOFO.
In a joint letter to Alan Davidson, who heads the National Telecommunications and Information Administration (NTIA), a partisan group of 11 U.S. Senators were emphatic that the National Telecommunications and Information Administration (NTIA) overstepped its bounds when it wrote the Notice of Funding Opportunity (NOFO) for the Broadband, Equity, Access, and Deployment (BEAD) program that addresses how $42.45 billion will be utilized to solve the country’s many areas that are underserved by reliable broadband.
The Republican Senators noted that NTIA’s NOFO does not comply with the Infrastructure Investment and Jobs Act (IIJA) intent.
They said NTIA’s failure to resolve their concerns “will prolong the digital divide and put billions of scarce taxpayer dollars at risk.” The Senators urged Davidson to revise or issue a new NOFO for the program and eliminate their overreach concerns.
Regarding labor requirements, the Senators said that under the IIJA, Congress only directed NTIA to prioritize broadband providers with a “demonstrated record of and plans to comply with Federal Labor and employment laws.”
The April 20, 2023 correspondence said that NTIA abused its authority by subgrantees being required to prioritize specific segments of the workforce, such as “individuals with past criminal records” and “Justice-impacted […] participants” when building out broadband networks.
They said the NOFO gives favorable treatment to government-owned networks over private investment. Specifically, the NOFO requires states to include “an explanation for awards to traditional broadband providers when one or more non-traditional providers submitted competing proposals.”
“This misguided incentive, which was not included in the IIJA, could divert program dollars to less capable providers—a real risk given municipal broadband’s track record of costly failure,” the letter states.
The legislators said the NOFO generally prohibits non-fiber projects from receiving BEAD funding despite Congress’ technology-neutral stance in the IIJA, which permitted all technologies, including wireless service, to be eligible for funding as long as they meet the IIJA’s network requirements.
”Further, under the NOFO’s rules, a state that does not use fiber must submit an overly complex and burdensome waiver request, inconsistent with Congress’s intent. States, working with the broadband providers that serve their communities should not be precluded from awarding sub-grants to alternative technologies if doing so is the right solution for their communities. In the absence of such flexibility, NTIA will fail in its mission to efficiently connect all Americans, “ the letter states.
The Senators also registered concern about the NTIA incorrectly making affordability and rate regulation, climate change, and supply-chain issue mandates.
Authoring the request were Senators John Thune, Ted Cruz, Roger F. Wicker, Deb Fischer, Dan Sullivan, Marsha Blackburn, Todd Young, Ted Budd, Eric Schmitt, JD Vance, and Shelley Moore Capito.