The National Telecommunications and Information Administration (“NTIA”) has published a Notice of Funding Opportunity (“NOFO”) for the $1 billion tribal connectivity grant program. Applications are due by Sept. 1, 2021. Of particular note, applicants can also request NTIA to forward the application to the Department of the Treasury to indicate interest in receiving broadband funds under the $10 billion capital projects program established by the American Rescue Plan Act in response to the COVID-19 pandemic. This summary focuses solely on applicants seeking funding to deploy broadband networks.
The following entities are eligible for the grants: (i) tribal governments; (ii) tribal colleges and universities; (iii) the Department of Hawaiian Homeland on behalf of the Native Hawaiian Community; (vi) tribal organizations, and (v) Alaska Native corporations. Eligible entities may only submit a single application. Where one eligible entity is a subsidiary of another (e.g., a tribal college subsidiary of a tribal government), the subsidiary may submit its own single application in addition to an application by the tribal government.
Of the $1 billion, at least $30 million will be allocated to Native Hawaiians and each federally recognized tribe will be allocated at least $500,000. These amounts are not caps. NTIA anticipates awarding grants for network deployments of between $1 million to $50 million, although these figures are neither minimums nor caps. There is no cost-sharing or matching funding requirement. Up to 5% of the grant can be used for pre-application expenses, including costs associated with preparing the application. Award of a grant under this program does not affect the ability of an eligible entity to receive broadband funding under other federal programs.
Funds may be used to deploy new networks or to upgrade or expand existing broadband networks, including both last-mile connections to homes or businesses or middle-mile connections to other networks. Projects can include wireline or wireless facilities, for example, build-out networks utilizing the 2.5 GHz spectrum that the FCC made freely available to tribes. Each project must result in a network capable of providing minimum download and upload speeds of 25 Mbps down and 3 Mbps up, but NTIA “encourages” the deployment of “future-proof” networks using fiber and that applicants focus on long-term sustainability of the deployed networks. Applicants should prioritize deployment networks to unserved households.
An unserved household means a household (i) lacking access to broadband capable of providing at least 25 Mbps downstream and 3 Mbps upstream (“Qualified Broadband Service”) and (ii) no provider is receiving or has been awarded federal funds to build Qualified Broadband Service to that location. Importantly, the disqualification of locations where a provider is or will receive funds only applies where there is a legally binding agreement, which must include a tribal government resolution or other legally binding approval of a tribe’s governing body, between the provider and the tribal government. Based on these criteria, tribes can self-certify which households are unserved or utilize other available broadband mapping information.
Applicants must commit awarded funds with 180 days. The enabling Act also requires that projects be completed within one year, but grants NTIA authority to extend that time if (i) there is a plan in place for the project, (ii) construction has started, or (iii) there are extenuating circumstances. Recognizing that network deployment often takes longer than a year, NTIA anticipates granting extensions when any of the three criteria are met. Applicants can request an extension of the one-year build-out requirement when they apply or no later than 90 days before the one-year period ends.
Consortiums and Regional Approaches
NTIA encourages eligible entities to participate in consortium or regional groups to propose regional broadband deployments. The consortium would file the application to provide broadband to a region or area. Participation in a consortium does not preclude a participant in the consortium from submitting its own separate application. A tribal resolution will be required from each tribe participating in the consortium.
NTIA has established objective criteria, assigning points on a scale of 1‒100 with the assumption that applications above 70 will qualify. The overall criteria and points are as follows:
- Project purpose and benefits (45 points), including overall need (35 points) and affordability/price of resulting service (10 points).
- Project viability (30 points) including technical approach and system design (20 points) with higher points for faster networks, and organizational capability (10 points).
- Project budget in terms of reasonableness and cost-effectiveness (10 points) and sustainability (15 points).
Other factors going into a final decision include strong labor practices, avoidance of duplication with other federal sources, and funding availability and equitable distribution. Applicants will have an opportunity to cure defects.
Timing of Review and Awards
NTIA anticipates that it will finish reviewing applications by Nov. 29, 2021, and start issuing grants by Dec. 12, 2021.
This document is intended to provide you with general information regarding a federal $1 billion tribal connectivity program. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.