The New York State Broadband, Equity, Access and Deployment (BEAD) Challenge Process (“Challenge Process”), run by the ConnectALL Office (CAO), is now open and accepting submissions. The Challenge Process is an opportunity for CAO to develop an accurate list of locations in the State that are eligible for funding through the BEAD program.
Local and tribal governments, nonprofit organizations and internet service providers (“Eligible Challengers”) may register to participate in the Challenge Process and may participate via the NYS Broadband Challenge Portal.1 During the current phase of the Challenge Process, which runs through April 18, challenges may be submitted for reasons including availability, speed, latency and if a location is set to receive broadband through an enforceable commitment. CAO is holding Office Hours this month in an effort to provide technical assistance to eligible challengers.2 Challenge Process participants are eligible to apply for CostQuest licenses, the cost of which is covered by the National Telecommunications and Information Administration (NTIA), to access broadband availability data, which may help them participate in the Challenge Process and simplify the submission of bulk challenges. Tier D licenses are available to qualified, or presumptively qualified, recipients and subrecipients of federal broadband grants (broadband providers, including co-ops and units of Tribal governments). Tier E licenses are available to units of local government, nonprofits and other organizations that have signed an FCC Tier 4 license.3
In late April, the rebuttal phase of the Challenge Process will open and run for 30 days. During the rebuttal phase, service providers may respond to challenges regarding classifications of their locations by submitting supporting evidence. At the beginning of this phase, all challenges that require a rebuttal will be posted on the NYS Broadband Challenge Portal. If a challenge was directed against a provider, then only that challenge provider may submit a rebuttal. For other challenge types, any Eligible Challenger may submit a rebuttal. Broadband providers will be directly notified via email of any challenges directed against them and the details necessary to respond. If no rebuttal is filed during the rebuttal phase, the challenge will be sustained by CAO.4 CAO expects to review challenges and rebuttals and make determinations based on submitted evidence in June and then submit its information to NTIA in July.
The State Digital Equity Capacity Grant Program (SDECGP) will make $1.44 billion available nationwide, which was awarded by the Assistant Secretary of Commerce for Communications and Information and was authorized as the second of three digital equity programs by the Infrastructure Investment and Jobs Act to put Digital Equity Plans into action.5 The SDECGP funds are intended to support sustainable, long-term interventions that address digital equity. The program is available to distribute funds to U.S. states, territories and Native entities.6 The tentative award allocation amount for New York is $36,984,641.81, which will be used to implement New York’s Digital Equity Plan and may be used for functions that include:
States and U.S. territories must ensure that they are reaching all of the Covered Populations within their jurisdiction.8 States and U.S. territories will be able to spend grant funds during the five-year period of performance beginning on the date when they are awarded grant funds. The application due dates are May 28, 2024, for states, Washington, D.C. and Puerto Rico; July 31, 2024, for U.S. territories; and February 7, 2025, for Native entities.9 Recipients of funds will be able to spend down grant funds during the five-year period of performance, which will begin on the date when the state or territory is awarded grant funds. New York published a Draft State Digital Equity Plan in November of 2023, which has not yet been approved by NTIA.10
The ReConnect Loan and Grant Program (“ReConnect Program”) recently opened a fifth round of funding that applicants may apply for until May 21, 2024, at 11:59 a.m. EDT. The ReConnect Program is part of the Biden-Harris administration’s $65 billion Internet for All Initiative and is administered by the U.S. Department of Agriculture. The program offers loans, grants and loan-grant combinations to facilitate broadband deployment in rural areas of the U.S. that do not have sufficient access to broadband. One of the aims of the program is to support long-term rural economic development and opportunities in rural America.11
Under this new round of funding, $700 million is available under the following categories: $150 million for grants, $200 million for loans, $200 million for loan-grant combinations and $150 million for grants serving Alaska Native corporations, tribal governments, persistent poverty areas and socially vulnerable communities. To be eligible, a proposed project must be in a rural area where at least 90% of households in the proposed fund service area (PFSA) lack sufficient access to broadband service, and it must provide broadband service to every premises located in the PFSA.12 Award funds may be used 1) to fund the construction or improvement of facilities required to provide fixed terrestrial broadband service; 2) to fund reasonable pre-application expenses; or 3) to fund the acquisition of an existing system that does not currently provide sufficient access to broadband (this category is only for those that received loan requests).13
Additional Assistance
For further assistance, please contact a member of our Telecommunications Industry Team or the Phillips Lytle attorney with whom you have a relationship.
1 In addition to providing a space for the Challenge Process, the NYS Broadband Challenge Portal may also be used by members of the public who may submit comments about internet service at given locations. The ability to submit a comment closes on April 11, 2024. See ConnectALL, New York State Broadband Challenge Portal, https://register.broadband.ny.gov/ (last visited Apr. 3, 2024).
2 Office Hours and recordings of previous webinars may be found at https://broadband.ny.gov/new-york-state-broadband-challenge-process.
3 Tier D licenses are available at https://apps.costquest.com/NTIArequest/. Tier E licenses are available at https://apps.costquest.com/ntiatiererequest/.
4 See ConnectALL, New York State Broadband Challenge Process User Guide, at 10, https://broadband.ny.gov/system/files/documents/2024/03/nys-broadband-challenge-process-user-guide.pdf.
5 See NTIA, Notice of Funding Opportunity for the State Digital Equity Capacity Grant Program (Mar. 29, 2024), https://www.ntia.doc.gov/federal-register-notice/2024/notice-funding-opportunity-state-digital-equity-capacity-grant-program.
6 NTIA, Notice of Funding Opportunity State Digital Equity Capacity Grant Program Executive Summary (“NOFO”), at 20 (2024), https://www.ntia.gov/sites/default/files/publications/ntia_fy24_sdecgp_nofo_final.pdf.
7 Id. at 32.
8 The groups that are considered to be Covered Populations under the program are individuals who live in households with income of not more than 150% of the poverty level, individuals aged 60 and older, incarcerated individuals, veterans, individuals with disabilities, individuals with a language barrier, individuals who are a member of a racial or ethnic minority group and individuals who primarily reside in a rural area. See NTIA, Fact Sheet: Introduction to the State Digital Equity (DE) Capacity Grant Program (Mar. 29, 2024), https://www.ntia.doc.gov/other-publication/2024/fact-sheet-introduction-state-digital-equity-de-capacity-grant-program.
9 See id.
10 See ConnectALL, New York State Digital Equity Plan: Draft for Public Comment (Nov. 2023), https://broadband.ny.gov/system/files/documents/2023/11/draft-state-digital-equity-plan-for-public-comment_2.pdf.
11 See USDA, Program Overview, https://www.usda.gov/reconnect/program-overview (last visited Apr. 3, 2024).
12 See USDA, Service Area Eligibility Requirements, https://www.usda.gov/reconnect/service-area-eligibility-requirements (last visited Apr. 3, 2024).
13 See USDA, supra note 11.
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