Last Friday, the National Telecommunications and Information Administration (“NTIA”) took a major step in furtherance of the Biden Administration’s goal of connecting all Americans to broadband by releasing its widely anticipated Notice of Funding Opportunity (“NOFO”) for the landmark $42.5 billion Broadband Equity, Access, and Deployment (“BEAD”) Program, along with NOFOs for two smaller programs.  All of these programs were created by the Infrastructure Investment and Jobs Act (“IIJA” or “the Act”) which was signed into law in November 2021.  The NOFO marks the beginning of the BEAD Program’s implementation and provides important guidance to states on the process for obtaining funds that they, in turn, will award to service providers and other qualified recipients for building out broadband to unserved and underserved areas. 

On timing, the NOFO clarifies that states will be eligible to receive some initial funding in the near-term, and that the bulk of funding will become available after the FCC releases broadband maps identifying broadband access across the country.  Commerce Secretary Gina Raimondo and FCC Chairwoman Jessica Rosenworcel have indicated that the FCC expects to release the maps as early as November 2022, meaning that BEAD funds will begin to flow to states and service providers and other qualified recipients in 2023. 

On substance, the NOFO expresses a clear preference (but not an absolute requirement) for fiber-to-the-home projects by defining “Priority Broadband Projects” as those “that will provision service via end-to-end fiber-optic facilities.”  Further, the NOFO retains the IIJA’s requirement that service providers must offer broadband service at a speed of at least 100 Mbps downstream/20 Mbps upstream and a latency less than or equal to 100 milliseconds.  Last, the NOFO defines “eligible subscribers” that will be eligible for a low-cost broadband service option that providers are required to offer as “any household seeking to subscribe to broadband internet access that (1) qualifies for the Affordable Connectivity Program (ACP) or any successor program, or (2) is a member of a household that” was at or below 200 percent of the Federal poverty line or qualifies under a low-income program such as Medicaid.

Despite the NOFO’s guidance in these areas and supply chain concerns raised by broadband providers, the NOFO leaves unanswered the question of whether there will be any waiver of the “Build America, Buy America” requirement that funded broadband networks be deployed using at least 55% domestic materials.

For an expanded discussion of the BEAD Program, please visit our Client Alert here.

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Photo of Matthew DelNero Matthew DelNero

Matt DelNero works with companies in the telecommunications, technology and media sectors—advising them in policy development, regulatory compliance, and commercial transactions, among other settings.

Photo of Yaron Dori Yaron Dori

Yaron Dori has over 20 years of experience in telecommunications, privacy, and consumer protection law, advising telecom, technology, life sciences, media and other types of companies on their most pressing business challenges. He is a former chair of the Communications and Media practice…

Yaron Dori has over 20 years of experience in telecommunications, privacy, and consumer protection law, advising telecom, technology, life sciences, media and other types of companies on their most pressing business challenges. He is a former chair of the Communications and Media practice group and currently serves as a member of the firm’s eight-person Management Committee.

Yaron’s practice focuses on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

He represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC)—and the U.S. Congress in connection with a range of policy issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications and data privacy regulation. His unique experience in telecommunications, privacy, and consumer protection enables him to advise clients on key business issues in which these areas intersect.

With respect to telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The California Consumer Privacy Act (CCPA);
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Online Behavioral Advertising;
  • Online advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on FCC (Enforcement Bureau), FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Gerard J. Waldron Gerard J. Waldron

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Mr. Waldron served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Mr. Waldron served…

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Mr. Waldron served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Mr. Waldron served as the senior counsel on the House Subcommittee on Telecommunications. During his work for Congress, he was deeply involved in the drafting of the 1993 Spectrum Auction legislation, the 1992 Cable Act, the Telephone Consumer Protection Act (TCPA), CALEA, and key provisions that became part of the 1996 Telecommunications Act.

Mr. Waldron’s practice includes working closely on strategic and regulatory issues with leading IT companies, high-quality content providers in the broadcasting and sports industries, telephone and cable companies on FCC proceedings, spectrum entrepreneurs, purchasers of telecommunications services, and companies across an array of industries facing privacy, TCPA and online content, gaming, and online gambling and sports betting-related issues.

Mr. Waldron has testified on communications and Internet issues before the FCC, U.S. House of Representatives Energy & Commerce Committee, the House Judiciary Committee, the Maryland Public Utility Commission, and the Nevada Gaming Commission.

Jocelyn Jezierny

Jocelyn Jezierny is an associate in Covington’s Washington, DC office and a member of the firm’s Communications and Media Industry Group. Before joining Covington, Jocelyn was an Attorney-Advisor in the Federal Communications Commission’s International Bureau, where she worked on matters pertaining to the…

Jocelyn Jezierny is an associate in Covington’s Washington, DC office and a member of the firm’s Communications and Media Industry Group. Before joining Covington, Jocelyn was an Attorney-Advisor in the Federal Communications Commission’s International Bureau, where she worked on matters pertaining to the licensing of foreign-owned U.S. telecommunications services providers.

Jocelyn is a member of the Bar of New York. District of Columbia bar application pending; supervised by principals of the firm.

Trevor Bernardo

Trevor Bernardo is an associate in Covington’s Washington, DC office. As a member of the Communications and Media Industry Group and Public Policy Group, Trevor represents and advises clients pursuing public policy strategies and conducting commercial transactions involving entities regulated by the Federal…

Trevor Bernardo is an associate in Covington’s Washington, DC office. As a member of the Communications and Media Industry Group and Public Policy Group, Trevor represents and advises clients pursuing public policy strategies and conducting commercial transactions involving entities regulated by the Federal Communications Commission and state public utility commissions. He also maintains an active pro bono practice. Before joining Covington, Trevor worked on various state and federal campaigns across the country.