Tribal areas of the U.S., typically located in rural, often remote, and sparsely populated areas of the U.S., have been the most difficult areas for consumers to obtain reliable, high speed broadband. Deployment costs are extremely high, particularly for fiber-based broadband service, and require subsidies. Recognizing this, Congress has appropriated $65 Billion in funding to close the broadband gap for the tens of millions of Americans that lack high-speed Internet service. In late July, NTIA announced a second Notice of Funding Opportunity (“NOFO”) that will make up to approximately $980 million in funding available from the Tribal Broadband Connectivity Program (“TBCP”) program. Awards for TBCP broadband deployment projects will range from $1 Million to $50 Million. Adoption and Use projects will range from $100,000 to $2.5 Million. Eligible Tribal entities that did not receive funding in the TBCP first round will be prioritized in the TBCP second round application process. Applications must be submitted by 11:59 p.m. Eastern Time (ET) on January 23, 2024. See the second TBCP NOFO. The NOFO directs applicants to include a “list of locations lacking [broadband] access preferably based on the FCC’s Fabric from its National Broadband Map” to “include a GIS Shapefile/polygon capturing locations to be served.”
Significantly, no cost sharing or matching funds requirement is required for eligible Tribal entity applicants. This distinguishes the TBCP from other federal broadband programs which require matching funds from grant applicants (NTIA’s BEAD Program), or investing in a recurring letter of credit in the event of default (FCC’s Rural Digital Opportunity Fund). Consortium applications are also encouraged.
The Tribal Broadband Connectivity Program is a nearly $3 billion grant program and part of the Biden-Harris Administration’s “Internet for All” Initiative. The funds were appropriated under Biden Administration’s Bipartisan Infrastructure Law ($2 billion), enacted by Congress during the pandemic, and the Consolidated Appropriations Act, 2021 ($980 million). The Bipartisan Infrastructure Law, of which the TBCP is a part, provides an historic $65 billion in funding to connect everyone in America. (See our May 2022 client alert “Biden Administration Launches Internet for All Initiative: NTIA Releases Notices of Funding Opportunity for $45 Billion in Broadband Grant Funding”). To date, the TBCP has awarded more than $1.78 billion in broadband grants to 191 Tribal entities.
These grants are part of the TBCP’s “equitable distribution process” implementing the federal government’s Indian trust responsibility and fiduciary obligation to Tribal governments. This process, spelled out by statute and in NTIA’s first TBCP Notice of Funding Opportunity in 2022, is intended to ensure that program funding is available to all eligible federally recognized Tribal governments who submit a qualifying application.
In addition, the FCC’s Affordable Connectivity Program (ACP) provides a discount of up to $75 per month for eligible households on qualifying Tribal Lands ($30 per month for eligible households in non-Tribal areas).
This second round of TBCP funding for Tribal governments is underway just as much attention is being given to the varying costs –and vastly different levels of broadband subsidies available—for broadband infrastructure deployment projects depending on the broadband technology deployed and the broadband program supporting the project. A recent Wall Street Journal study reports that federal support for fiber broadband projects ranges from an average $13,335 per location under the Tribal Broadband Connectivity Program (reserved for Tribal eligible entities) to an average $1,753 per location under the FCC Rural Digital Opportunity Fund (“RDOF”), using a reverse auction model. See, Broadband for All Comes With Some Sky-High Costs, Wall Street Journal (September 6, 2023) at A1, A2. While some of this cost difference can be explained by the TBCP covering some of the most remote, highest cost locations (such as in Alaska), while the RDOF included unserved suburban locations that can be served at a lower cost, the FCC’s reverse auction model is designed for the most efficient bidders, and is not intended to fully cover buildout costs. Moreover, it prolongs partial funding of buildout costs under a reverse auction model over a 10 year period, despite requiring completion of broadband buildout to all awarded locations within 6 years. Winning bidders under the RDOF program must also invest the expense to secure a commercial letter of credit and renew it yearly to protect the government in the event of default.
Potomac Law Group’s Administrative and Native American Law Practice attorneys have assisted many Tribal entities in securing broadband grant funding under programs administered by NTIA and the Federal Communications Commission. This includes a nearly $50 Million TBCP infrastructure deployment project to connect more than 14,000 Native American households with high speed broadband of no less than 25/3 Mbps service.
For more information about federal broadband funding programs, please contact Potomac Law Group Partner Douglas G. Bonner (dbonner@potomaclaw.com) or any one of Potomac Law Group’s Communications, Media & Entertainment attorneys.
