- GAO calls on Congress to review NTIA’s restructured BEAD notice
- States and territories have just finished resubmitting their final proposals
- BEAD money is once again in a state of uncertainty
In a new twist to the Broadband Equity, Access and Deployment (BEAD) program, the Government Accountability Office (GAO) has determined NTIA’s June 6 restructuring notice is subject to congressional review.
Per the Congressional Review Act (CRA), federal agencies are required to submit a report on any new rule to the House of Representatives, Senate and the Comptroller General before it can take effect. The GAO noted NTIA did not do that, nor did it “provide a substantive response with its legal views” on the BEAD changes.
“We conclude that the Policy Notice meets the [Administrative Procedure Act] APA definition of a rule, and no CRA exception applies. Therefore, the Policy Notice is a rule subject to CRA's submission requirements,” the GAO wrote in a December 16 filing.
The GAO’s decision throws another wrench of uncertainty at BEAD as states finish revising their deployment plans. All 56 states and territories have submitted a final proposal to NTIA, which as of December 5 approved 32 plans. This revived hopes that shovels will soon hit the ground, but a congressional review could spell out more delays.
According to the GAO, CRA allows Congress to review and disapprove of federal agency rules for 60 days. “If a resolution of disapproval is enacted, then the new rule has no force or effect,” the agency wrote.
It’s unclear how such a decision would pan out or how NTIA will respond to the GAO. But it's safe to say it could take awhile longer for states to get their hands on BEAD money, according to some regulatory experts.
Joseph Silverzweig, attorney at Silver Strategy, said on LinkedIn he thinks the funds will “get spent eventually, somehow” without an act of Congress saying otherwise. At the same time, he’s advising clients to “expect nothing until the check clears” and direct strategic resources elsewhere for now.
The concern isn’t the GAO decision itself but Congress’ reaction, commented Bill Perkins, founder of consulting firm 4P Technologies LLC.
“This decision has no direct financial consequence on the $42.45 billion fund amount, but it creates significant uncertainty regarding the operational and financial rules that will govern the eventual distribution and expenditure of the BEAD funds, which have not yet been distributed for any deployment projects,” he wrote.
Even though NTIA has approved more than half of the submitted BEAD plans, the process to gain access to BEAD funds is far from over.
States and territories must also get approval from the National Institute of Standards and Technology (NIST) before they get their allocations and start negotiating contracts with ISPs. Louisiana is so far the only state to get the NIST greenlight.
All told, the ball is now in NTIA’s and Congress’s court. Fierce has reached out to NTIA for comment and will update this story if we hear back.