International Municipal Lawyers Association - Local Government Blog

BTOP/NOFA- What Does it Say and What Does it Mean to You? | August 4, 2009

Posted By: Joseph Van Eaton, Partner, Miller & Van Eaton, PLLC

Tucked into the Stimulus Bill, officially known as the American Recovery and Reinvestment Act of 2009,  there was nearly 8 billion dollars for expanding broadband availability in the nation.  According to Section 6001 of the statute, the broadband program was to provide service to unserved areas and enhanced services to underserved areas,  and also program dollars were to be made available on a competitive basis to link community anchor institutions and support public safety broadband services.  While there was not enough money to connect all anchor institutions or service all public safety needs, these funds would serve as an incentive to municipal leaders to create models that others could follow.

Almost six months after passage of the ARRA, on July 1, 2009 the Department of Commerce issued its Notice of Funding Availability (“NOFA”).  A NOFA establishes what funds are available for applicants, the timeframe for seeking these funds and the rules that govern applicant eligibility.  Miller & Van Eaton has created a web link to the governing documents and offers a PowerPoint to take the reader through the NOFA in a step-by-step process.

The bottom line is that there is wide spread disappointment in the NOFA.  This disappointment arises from two rules established by the Department of Commerce.  First, the NOFA mandates that no funds would be available for public safety or connecting anchor institutions unless the applicant can demonstrate that the project will reach unserved or underserved census blocks, as defined by the Department.   Second the NOFA allows all for-profit entities to compete for the funds so long as they agree to certain interconnection obligations. 

The net result is that urban America will likely be barred from competing for these broadband funds (except for more limited community computer center and broadband sustainability projects).  And incumbent telephone, cable and cellular providers which have failed to offer their communities broadband services in the past will now be the most likely recipients of the funds.

While advocates for local governments are right to be disappointed, there is no reason to give up.  The NOFA releases only about one-third of the available funds and the Department of Commerce has indicated it might be willing to refine the rules for further funding rounds of the program. 

You should make your voice heard at the Department of Commerce and with your congressional delegation.  The message is simple.  Don’t leave the urban underserved behind in the broadband age and tell Department of Commerce to give public safety a fair shot at demonstrating their broadband application could be a model for others.

Additional Online Resources

New Website http://broadbandusa.sc.egov.usda.gov/index.htm

Notice of Funding Availability (NOFA) for the first round of broadband stimulus grants http://broadbandusa.sc.egov.usda.gov/files/BB%20NOFA%20FINAL%20with%20disclaimer_1.pdf

Workshop materials http://broadbandusa.sc.egov.usda.gov/workshop.htm

Recovery.gov:  Tracks federal agency expenditures of American Recovery and Reinvestment Act monies: http://www.recovery.gov

Office of Management and Budget implementation guidance on stimulus spending: http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-10.pdf

National Telecommunications and Information Administration programs:  http://www.ntia.doc.gov/otiahome/otiahome.html

Rural Utilities Service programs: http://www.usda.gov/rus/telecom/index.htm

Federal Communications Commission on rural broadband: http://wireless.fcc.gov/outreach/index.htm?job=broadband_home

Full text of American Recovery and Reinvestment Act of 2009:  http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1enr.pdf