House questions NTIA's Davidson on BEAD, spectrum

'Tis the season for the House Energy & Commerce Committee to hold oversight hearings of federal telecommunications agencies. Following last week's oversight hearing of the FCC, this week saw the NTIA's Alan Davidson in the hot seat, answering questions on implementation of the $42.45 billion Broadband Equity Access and Deployment (BEAD) program, spectrum policy and more.

Davidson, who serves as administrator of the NTIA, last sat before the committee in May, prior to the agency allocating BEAD funds for states and territories. Since then, the NTIA has made additional moves on BEAD, including issuing waivers for the program's "Buy America" and letter of credit requirements. The NTIA is also working on reviewing and approving states' BEAD proposals (two states, Louisiana and Virginia, have had part of their proposals approved thus far, according to a progress dashboard).

Tuesday's hearing saw committee members rehash concerns around BEAD's rules and regulations, and revisit questions about spectrum raised during last week's FCC oversight hearing.

Here are some of the main topics discussed.

BEAD and the ACP

The Affordable Connectivity Program (ACP) was a recurring topic of discussion throughout the hearing, and one Davidson raised in his opening statement.

Related:Five takeaways from the House FCC oversight hearing

"A key underpinning of all of these initiatives is affordability," he said, referring to the NTIA's broadband deployment programs. "The FCC's Affordable Connectivity Program is a linchpin of that effort, and today is helping more than 22 million households pay for internet service. Congress needs to act now to put ACP on firm financial footing going forward."

The issue of the ACP running out of funds, and the impact that will have on BEAD, was then raised by multiple Democrats on the committee, including New York Rep. Yvette Clarke, who said during last week's FCC oversight hearing that she intends to introduce standalone legislation to fund the program this year.

As he did during his testimony in May, Davidson reiterated the key role of the ACP to BEAD's success.

"[T]his is actually goes beyond affordability, and it goes to the question of whether we're going to be successful in building these networks right, and we know that it's going to be much harder to build networks and do the big build out to connect everybody if there isn't a customer on the other end of the line," he said.

BEAD and tech neutrality

The topic of BEAD's fiber focus has loomed large since the NTIA released its notice of funding opportunity for the program last spring, with wireless groups and allies in Congress pushing the NTIA to ensure that BEAD stays "tech neutral." During Tuesday's hearing, Davidson again reiterated that the program will still adhere to tech neutrality, as required by the infrastructure law, but would prioritize "fiber first" where possible.

Related:How ACP negotiations might shake out

"We've always contemplated from the beginning that states would ultimately adopt a range of technologies and different states would choose a different mix," said Davidson.

"It's going to be fiber first where we can, and then states have the flexibility to use other tools, including setting a high-cost threshold so that for the most expensive, difficult-to-reach places we're going to use alternate technologies – which will include things like, for example, low-Earth orbit satellites, LEO satellites, which can give very good service and do it more cheaply in remote areas," he added.

BEAD's 'low-cost' option

Multiple Republicans on the committee raised concerns about how the BEAD program may or may not subject participating providers to "rate regulation" via state plans. While Davidson confirmed the NTIA will not engage in rate regulation at the federal level, as is prohibited, he would not commit to rejecting state plans that set a low-cost plan requirement.

Related:Biden's spectrum plan doesn't quell 5G capacity worries

"We are not setting a price at NTIA. We are not setting a national price for broadband. We're not setting rates ... Our view is that different states will approach this in different ways."

Davidson further noted that BEAD is an optional program.

"Nobody is required to be part of this program. This is a federal funding program. We're spending billions of dollars of federal money. It seems quite reasonable to say that in return for receiving these federal funds, that providers ... need to have a low cost option," he said. "Different states are going to take different approaches to how they do that. And we're giving them the flexibility to do it in different ways."

Davidson was pressed again on whether the NTIA will permit states to regulate rates in their BEAD plans. "I think we would say that we're giving states flexibility to set the low-cost option the way they want to," he said.

"Wow, that's shocking," said Rep. Rick Allen, a Republican from Georgia.

Spectrum stuff

The federal government's spectrum strategy and availability was another topic of Tuesday's hearing. Following the release of the Biden administration's spectrum strategy last month, which identifies 2,786MHz of spectrum across five bands for possible new uses, Davidson said today that the NTIA will "issue an implementation plan" to execute on that strategy "by mid-March." He added that "Congress can support US leadership in this space by reestablishing the FCC's all-important auction authority," which lapsed earlier this year.

Members of Congress also inquired about a Department of Defense (DoD) report on using the lower 3GHz band for 5G, for which they have been unable to receive a briefing, nor a copy of the study. "We are committed to trying to get this to you as soon as possible," said Davidson.

The NTIA is supposed to identify 30MHz of spectrum below 3GHz for auction. However, Davidson indicated complication with that based on the DoD findings, while cautioning committee members that the report findings would best be discussed "in a more appropriate setting." 

Referring to the lower 3GHz band, he said: "I think the tricky part there is what we are seeing from our colleagues at DoD is that that portion of spectrum is not readily available today ... you can't share it now and use it ... and we have real work to do to be able to meet the conditions where we could do more sharing, but we're not ready to give up on it, and we want to do that hard work."