Department of Commerce Seeks Public Comment on a Range of Broadband Infrastructure Issues Arising from the 2021 Infrastructure Investment and Jobs Act

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On the eve of the U.S. Senate’s confirmation of Alan Davidson as the new Administrator of the National Telecommunications and Information Administration (NTIA), NTIA published a request for public comments on January 10, 2022, on a range of broadband infrastructure issues, paving the way for Davidson’s reported top priority in his term. The request is the first of a series, which together are to establish three new NTIA programs under the appropriations from the November 2021 Infrastructure Investment and Jobs Act: the Broadband Equity, Access, and Deployment (BEAD) Program, the “Middle Mile Infrastructure” Program, and the Digital Equity Inclusion Program.

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US Broadband in 2021; Policies Promoting Infrastructure, Competition, National Security and Universal Access

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During his presidential campaign, President Biden committed “to build back better in rural America” by “expand[ing] broadband, or wireless broadband via 5G, to every American.” Last month, President Biden renewed his focus on “universal broadband” through the announcement of a bipartisan agreement for a large infrastructure bill that highlights broadband connectivity. Between setting the goal and realizing congressional appropriations to implement his “Build Back Better” initiative, federal (and in some situations, state) regulators have also confronted several important broadband infrastructure issues this year as they balance an understandable desire for competition and choice among broadband networks and service offerings against the practical challenges and economic realities of broadband deployment. What progress has the Biden Administration made so far?

Broadband is more important now than ever. According to a 2021 report by Parks Associates, 41% of US broadband households have been working or attending schools remotely, with the COVID-19 pandemic having driven approximately 7.2% of those households to upgrade their broadband network last year. Terabytes of data are communicated and shared every second through broadband Internet platforms – the most ubiquitous means of communication and connection.

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The FCC’s “Restoration of Internet Freedom Order” Largely Survives on Appeal; But Net Neutrality is Not Dead Yet

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On October 1, the U.S. Court of Appeals for the D.C. Circuit released a long awaited decision in Mozilla Corporation v. FCC that largely upheld most aspects of the Federal Communications Commission’s 2018 “Restoring Internet Freedom Order”  While FCC Chairman Pai quickly claimed victory, the nearly 200 page decision was in several areas quite critical of the FCC’s process, as well as the agency’s reasoning or the lack of discussion or support in the record for several of the Order’s determinations. Although these defects were not sufficient for the Court to reverse the Order on review, the Court nevertheless agreed with petitioners on several issues, discussed below, and remanded them to the agency for additional consideration.

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