Negotiations on a second large COVID-19 relief legislation effectively broke down August 7. While the President responded with several stop-gap executive actions, both parties seem to recognize relief legislation is urgently needed and there is speculation that some kind of deal will be cut by mid-September. In the meantime, with the Senate technically still in session, new broadband-related bills continue to be introduced. Bi-partisan bills, such as this one (introduced in early August) sponsored by Senator Joe Manchin (D-WV) and Senator John Cornyn (R-TX), which would allocate another $400 million to the Federal Communications Commission’s (FCC) COVID-19 Telehealth program, have a reasonable chance of being part of a last-minute relief package.
National Telecommunications and Information Administration (NTIA)
The next NTIA monthly webinar will be held on September 16 and will address: Smart Agriculture: Driving Innovation in Rural America. The July webinar addressed Cyberinfrastructure: Moving Beyond Broadband at HBCUs and TCUs; a recording and materials are available here. There was no August webinar. The August BroadbandUSA Newsletter includes links to notable state broadband news items from Illinois, Missouri, Ohio, and Pennsylvania, among others.
NTIA hosts a searchable database featuring 50 federal broadband funding opportunities across a dozen federal agencies. The NTIA Broadband USA main page features a state-by-state summary of state broadband programs (scroll down to the map and click on a state). NTIA has released pilot results of its National Broadband Availability Map (NBAM) which was authorized by Congress in 2018. The NBAM initially covered eight states, but now includes 22 states total: California, Colorado, Georgia, Illinois, Indiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, North Carolina, Oregon, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The NBAM incorporates FCC Form 477 data along with broadband data from third-party sources including other federal agencies. Because the NBAM includes both public and proprietary data, coverage details are available only to state and federal partners and not the general public (contact firstname.lastname@example.org for more info).
USDA – Rural Utilities Service
As Congress struggles to pass appropriations bills prior to the end of the federal fiscal year on October 1, the House in July passed an agricultural funding bill with over $1 billion for broadband in fiscal year 2021, including $990 for the ReConnect Program (a $435 million increase over 2020). Although the Democrats’ bill is unlikely to gain bi-partisan support, it suggests the ReConnect program could continue to grow in size. Proposed ReConnect projects can be viewed here; awardees are identified here; proposed and funded projects are depicted on an interactive map here. The Distance Learning & Telemedicine Grant Program received an additional $25 million in funding in the CARES Act although the application window is now closed. The RUS Community Connect Grant program is currently inactive.
The FCC’s Precision Agriculture Connectivity Advisory Task Force met virtually on July 22, 2020 – you can view the meeting and meeting materials here. The April 2019 USDA report on rural broadband infrastructure and next-generation precision agriculture is available here. As the precision agriculture market continues to explode, Purdue University announced on August 10 that it was collaborating with the National Science Foundation-funded Engineering Research Center to develop the Internet of Things for Precision Agriculture.
Federal Communications Commission
The FCC held open meetings on July 16 and August 6, respectively. The next open meeting will not be until September 30 (agenda not available yet). The August 6 meeting notably adopted procedures for the C-band auction which is scheduled to begin in December 2020 (which we covered on CommLawBlog). The most important broadband-related item out of the July 16 meeting was the establishment of the Digital Opportunity Data Collection program, implementing the Broadband DATA Act (which became law in March 2020), which will replace the current broadband mapping program based on the flawed FCC Form 477 data. We will have more on this new mapping effort soon.
The unused spectrum between TV station channels or in places where channels are vacant are called “white spaces.” This vacant broadcast spectrum represents a resource for mobile broadband, particularly in rural areas. In March 2020 the FCC proposed updated rules to facilitate increased innovation in the white spaces area. Comments are currently being filed in this rulemaking. The Schools, Health & Libraries Broadband Coalition (SHLB) signed on to the Broadband Connects America Coalition comments. Microsoft has been a leader in this area – their May 2020 comments are here. The most recent Microsoft ex parte has a detailed presentation on laboratory and field operational testing of the white space devices.
COVID-19: New Telehealth Program and E-rate & Rural Health Waivers
The FCC in April 2020 established the COVID-19 Telehealth Program in response to Congress appropriating $200 million in funding for telehealth to the FCC as part of the CARES Act. The FCC stopped accepting applications in late June and on July 8 announced it had fully committed the program. The final list of awardees are available here (Excel; PDF).
The Commission on March 18, 2020, waived the gift rules for both the E-rate and RHC programs through September 30, 2020. SHLB and other groups recently requested that the waiver be extended through June 30, 2021. On September 3, the Commission agreed to extend the waiver until December 31. The scope of this waiver is broad, permitting (¶ 7):
service providers to offer [free of charge], and eligible RHC and E-Rate entities to solicit and accept, improved capacity, Wi-Fi hotspots, networking gear, or other things of value to assist health care providers, schools, and libraries as well as doctors and patients, teachers, students, school administrators, and librarians and patrons during the coronavirus outbreak. These gifts could include but are not limited to free upgrades to connections, connected devices, equipment, and other services for RHC program participants who provide care via telemedicine and free broadband connections, devices, or other services that support remote learning for students and teachers who will be taking classes at and providing instruction from home as a result of COVID-19.
The Commission in both E-rate and RHC extended programmatic deadlines for filing funding applications, appeals, invoicing, service delivery, and information requests, as well as waived certain rules regarding contract extensions. If you intend to take advantage of any of these extensions of waivers, please consult these orders carefully.
The State E-rate Coordinators Alliance (SECA) on August 3 asked the Commission to make options available for Schools and Libraries to seek more bandwidth for the current funding year (July 1, 2020 through June 30, 2021), in order to accommodate greater bandwidth needs due to COVID‑19. SECA indicates that on-campus bandwidth demand has grown in order to support greater off-campus instruction. SECA supplemented its request on August 27 with specific cost estimates. SHLB on August 28 filed a letter in support of SECA’s request but also asking the FCC to allow RHC applicants similar relief.
The FCC on August 6 granted waivers to a number of late-filed funding requests. The FCC had in March 2020 already extended the Form 471 filing deadline by 35 days to accommodate COVID‑19. The latest order waived the deadline for applications filed within 60 days of that extended deadline in cases where applicants had indicated their inability to meet the extended deadline was due to COVID-19. The FCC said it did not expect to grant further Form 471 deadline waivers for this funding year.
Rural Health Care
As an aside, North Carolina’s Broadband Infrastructure Office and the NC Department of Health and Human Services recently published a report analyzing the state of healthcare and broadband access in Western North Carolina.
As noted above, SHLB on August 28 asked the FCC to allow RHC applicants to re-open their FY 2020 funding applications and seek additional bandwidth to help deal with COVID-related demand. Among other things, SHLB directed the FCC’s attention to a recent Executive Order by President Trump on Rural Health and Telehealth Access. As SHLB explained (footnotes omitted):
On August 3, 2020, President Trump issued an Executive Order (EO) to expand the availability of telehealth services, noting the “jump” in demand for telemedicine and calling for increased funding from the FCC for communications infrastructure. In particular, the EO directs the Secretary of Health and Human Services and the Secretary of Agriculture, “in coordination with the [FCC] . . . [to] develop and implement a strategy to improve rural health by improving theRural Heat physical and communications healthcare infrastructure available to rural Americans.” We urge the Commission to grant this waiver request and establish a reasonable deadline for RHC applicants to seek this additional funding to comply with this Presidential directive and to enable healthcare providers to upgrade their broadband infrastructure as soon as possible to address the pandemic.
While the Universal Service Administration Company (USAC) continues to make progress processing funding applications for 2019 (which ended June 30, 2020), it remains far behind where it was last year, and even farther behind E-rate. Consider the following comparison between the two programs as of the end of June:
This situation was raised by several USAC board members during the last USAC quarterly meeting and has attracted the attention of USAC’s CEO which initiated a meeting on September 1 with SHLB and program stakeholders to discuss the situation.
(*See page 23 (Amount Authorized for Disbursement + Reserve for Outstanding Obligations))
In February 2020 the FCC sought public comment on the three narrow issues remanded by the DC Circuit: jurisdictional questions over pole attachment regulation, impacts on public safety, and funding broadband through the Lifeline Program (comments here).
No parties ultimately sought Supreme Court review of the October 2019 DC Circuit decision upholding the FCC’s 2017 repeal of net neutrality rules (the deadline to seek review was in July after the DC Circuit in February had declined to re-hear the case en banc). As a result, voluntary stays in the state-specific federal litigation have lapsed. Recall the DC Circuit reversed the FCC in asserting blanket preemption of state-specific rules, but this did not preclude state-by-state preemption claims based on specific conflicts with federal law. See individual case updates:
- Eastern District of California. In October 2018, SB 822, the California Internet Consumer Protection and Net Neutrality Act of 2018 was challenged in federal district court in California by the Department of Justice (DOJ) and several industry groups in a separate suit. DOJ had sought a preliminary injunction but the court agreed to a request by all parties to stay the case after California agreed not to enforce the law pending final resolution of Mozilla v. FCC. The DOJ on August 5, 2020 filed a renewed motion for a preliminary injunction; the state has until September 18, 2020 to respond. Industry groups also renewed their request for an injunction.
- Vermont District Court. In October 2018 the same industry groups – American Cable Association (ACA), CTIA – The Wireless Association (CTIA), NCTA – The Internet & Television Association (NCTA), and USTelecom challenged Vermont’s net neutrality law and executive order in federal district court there and in January 2019 sought summary judgment. The parties in March 2019 agreed to stay further proceedings pending a final resolution of Mozilla v. FCC. The stay is apparently expired but there are no new filings in the proceeding as of yet.
The National Conference of State Legislators (NCSL) features a summary of net neutrality efforts by state for 2020 here (updated March 27, 2020). Note this list does not identify current laws, only current efforts to pass new laws.