BEAD Volume 1 – Trends & Observations

Late last week, NTIA indicated that, after long last, it had finally approved the last 3 BEAD Volume 1s (V1), endorsing plans submitted by Florida, Maryland, and Minnesota. This occurred a little over a year after Louisiana became the first state to release a draft of its Volume 1. BEAD V1s detail how a state will administer its Challenge Process (CP). In theory, the CP will refine the FCC broadband availability data and yield more granular state maps that precisely identify all BEAD-eligible locations (i.e., those that remain unserved or that are considered underserved).

Via BBE, the ACLP at New York Law School has been closely tracking each iteration of Volumes 1 and 2 issued by the 50 states. Each Volume has benefited from public input and NTIA feedback. In most cases, states have traded updated drafts with NTIA to “cure” issues and shortcomings in these proposals. Volumes that have passed muster have been formally approved by NTIA. Receiving approval of a V1 allows states to launch their CPs; approval of Volume 2 (V2) permits states to launch their BEAD grant programs, which must be wrapped up within 1 year.

Trends & Observations

The following summarizes trends the ACLP has observed in the evolution of V1s across the 50 states. Over time, we will offer similar analyses of V2s (as of today, only 7 states have had their V2s approved by NTIA; none has launched their BEAD program yet).

Erratic Timing

States have been all over the map (pun intended) when it comes to launching and completing their CPs. NTIA has a handy tracker of all ongoing and completed CPs. An initial wave of states that have already completed their CPs and submitted their results to NTIA for approval include, among others, CO, DE, KS, LA, and VA. The bulk of states are still administering their CPs, and a handful, like FL, MD, and MN, have yet to start them (at least one state, NC, is pushing its CP to later this year).

This scattershot approach to CPs does not appear to have had any practical impact on BEAD stakeholders, save for the administrative burdens of participating in these processes. Moreover, NTIA has yet to sign off on the CP findings of states like KS, LA, and VA, which submitted their results months ago. Every day that passes without NTIA authorization of CP results compresses the BEAD timeline for states that have had their V2s approved.

Bend the Knee

Make no mistake – NTIA is in charge of administering and overseeing every aspect of BEAD. States are responsible for developing plans for allocating BEAD funding (via V1 and V2) that reflect their laws and general approach to bolstering broadband availability, but those plans are being carefully reviewed and cured relative to NTIA’s preferred approaches for the program. Ongoing debates about state-level concerns over NTIA’s low-cost option and middle-class affordability requirements illustrate the tension that can arise because of NTIA’s my-way-or-the-highway stance.

A less discussed but equally illustrative example of this dynamic has been evident in NTIA approvals of state V1s. For example, a key step before opening a CP involves modifying the FCC map to reclassify certain locations as unserved or underserved. NTIA proposed two presumptively acceptable pre-CP map modifications, including labeling as underserved any location that only receives DSL. By the ACLP’s count, 40 out of 50 states adopted this modification (a handful of states, including AK, IA, NE, TN, TX, and VA, did not apply any modifications to their maps).

Early V1 drafts released by the states included a host of additional, oftentimes novel proposed modifications. For example, CO, MI, and several other states wished to certify that every single unit in a multi-dwelling structure had access to a broadband connection before they would label that MDU served (NTIA and the FCC approach this issue much differently). A number of other states also wished to reclassify as unserved or underserved locations that receive fixed wireless broadband over licensed spectrum and/or cellular networks.

Per ACLP tracking, which is summarized in our table outlining States’ Pre-CP Map Modifications, the NTIA review, curing, and approval process for state V1s resulted in a significant regression to the mean, with the mean being NTIA’s model challenge process. In almost every instance, states excluded most of their novel pre-CP modifications, opting instead for 1 or 2 pre-approved modules for refining a challenge map (changes made between early drafts and later drafts are indicated in red).

Licensed v. Cellular FWA

Among the more contentious issues implicated by state CP proposals has been the treatment of locations that receive broadband service via fixed wireless access (FWA).

Initially, some states proposed reclassifying locations that only received licensed FWA as underserved. Only 3 states proposed a similar approach to Cellular FWA. Over the course of the NTIA review and approval process, and likely as a result of aggressive lobbying by the licensed FWA industry, NTIA all but eliminated proposed modifications for licensed FWA from state V1s (a modification in Missouri’s V1 not specifically focused on licensed FWA will likely encompass primarily FWA-served locations). At the same time, 11 additional states adopted a cellular FWA modification.

Bottom Line

The upshot of this top-down review and approval model imposed by NTIA is some uniformity across the country vis-à-vis challenge processes. The downside for states is an erosion of their ability to structure their CPs – and other components of BEAD – as they wish. Instead, NTIA has used the Initial Proposal approval process to make states conform, as much as possible, to its vision for broadband deployment.