Takeaways From Final Proposal Deadline Extension in $42.5 Billion BEAD Program
On April 22, 2025, the National Telecommunications and Information Administration (NTIA) issued a Notice of Programmatic Waiver (Waiver Notice) providing a 90-day extension of the Final Proposal deadline in the Broadband Equity Access and Deployment (BEAD) program. The issuance of the Waiver Notice is the clearest sign yet that the Department of Commerce is pressing forward with its review of the BEAD program. And just as importantly, it provides some additional clues about the nature of the changes that the Department is contemplating for the BEAD program.
Dating back to the initial days following the presidential election, speculation has abounded about the nature of potential changes the new administration would consider making to the BEAD program. The pass-through structure of BEAD, in which states design and implement subgrantee selection processes subject to NTIA’s ultimate authority, make changes to certain aspects of the program complex—although not impossible. As states continue to implement their subgrantee selection processes, prospective subgrantees and other stakeholders are searching for signs about the nature and direction of the Commerce Department’s review.
This alert highlights three key takeaways from the Waiver Notice.1
First, the Commerce Department continues to focus its review on ways to speed deployment and introduce a greater technology mix into the BEAD program. While the Waiver Notice provides few details about specific changes in these areas, Arielle Roth’s recent responses to question for the record from her confirmation hearing, provisions of the SPEED for BEAD Act, and recent actions in other federal broadband programs provide clues regarding potential actions. While some potential changes can be implemented quickly and uniformly, others may result in significant downstream effects and impact some states more than others.
Second, a careful reading of the Waiver Notice suggests that changes under consideration will not constitute a complete overhaul of the program, and may not even directly conflict with the BEAD Notice of Funding Opportunity (NOFO). Specifically, the Waiver Notice’s reference to a forthcoming “Policy Notice” indicates that the Commerce Department plans to implement changes through program guidance rather than a new notice of funding opportunity. Program guidance normally does not supersede provisions in a notice of funding opportunity, and instead provides notice of new agency policies and interpretations.
And third, stakeholders will need to quickly react to any new changes in many states. Even with a 90-day extension, a dozen states are facing Final Proposal deadlines in September or earlier. These states will have an abbreviated period to design new policies, implement those policies, and document it in their Final Proposal.
By tracking and developing strategies for potential changes now, stakeholders of all kind—prospective deployment subgrantees, non-deployment subgrantees, equipment manufacturers and others—will be poised to adjust their approach when and if changes are announced.
Background
As required under the Infrastructure Investment and Jobs Act (IIJA), states participating in the BEAD program must develop and seek Commerce Department approval of two significant proposals for achieving universal broadband coverage within their jurisdiction. The first of these plans is the “Initial Proposal.” Initial Proposals include, most notably, each state’s procedures for administering a “challenge process” for identifying unserved/underserved areas and a “subgrantee selection process” for selecting providers to serve these areas. NTIA announced approvals of the Initial Proposals of all 50 states and eligible territories on a rolling basis between December 2023 and November 2024.
The second significant proposal that states must submit for NTIA approval is the Final Proposal. Under the NOFO, NTIA gave states one year from the date of Initial Proposal approval to implement their challenge process and subgrantee selection, and submit a Final Proposal detailing the outcomes of these processes.
At the time the Trump administration took office, the vast majority of states were in the midst of implementing their approved Initial Proposals. Shortly thereafter, Secretary of Commerce Howard Lutnick announced on March 5, 2025, a “rigorous review” and forthcoming “revamp” of the BEAD program. Secretary Lutnick’s statement promised, among other things, a “tech-neutral approach” that would “quickly…get households connected” and “at the lowest cost to taxpayers.”
Around the same time, the Chairman of the Communications and Technology Subcommittee on the House Energy and Commerce Committee, Richard Hudson, introduced legislation that would significantly alter the trajectory of the BEAD program. The SPEED for BEAD Act would, among other things, make the BEAD program more technology neutral, limit the ability of states to establish project areas, and direct more funding to workforce development.
In the midst of these harbingers of change, most states continued to implement their challenge processes and subgrantee selection processes as originally outlined. Indeed, as of the date of this alert, over 40 of the 56 eligible states and territories had either opened or finished their subgrantee selection process.
This dizzying sequence of events has left industry stakeholders searching for clues about the future of the program.
Key Takeaways From the Bead Waiver Notice
1. COMMERCE’S REVIEW IS FOCUSED ON STREAMLINING DEPLOYMENT AND INTRODUCING A GREATER MIX OF TECHNOLOGIES
Streamlining Deployment
The Waiver Notice provides that one aim of the ongoing review is to streamline deployment. While it does not cite to specific actions the agency is considering, Roth’s responses to questions for the record and recent actions by other federal agencies provide clues about actions potentially under consideration.
One issue the new guidance could address is permitting. Broadly speaking, permitting is the series of local, state and federal authorizations providers must obtain as part of deploying broadband infrastructure. In her responses to questions for the record, Roth cited NTIA’s ability to reduce “permitting burdens” as one way to speed deployment.
The guidance could also aim to speed commercial transactions in preparation for deployment projects—to allow projects to start earlier. As a general matter, federal regulations prohibit subgrantees from claiming reimbursements for expenses incurred prior to entering into a subgrant except with prior written approval of the federal agency. If new guidance provides such approval, provisionally selected subgrantees could start acquiring equipment and real property earlier than would otherwise be the case. Indeed, other agencies recently have exercised this discretion in similar broadband deployment programs.
A Greater Mix of Technologies
The Waiver Notice also reiterates the Commerce Department’s intent to take a “tech-neutral approach.” Secretary Lutnick expressed a similar sentiment in his March statement, where he also shared his desire to deliver projects at “the lowest cost.” While neither the Waiver Notice nor Secretary Lutnick’s March statement provide specific details about potential changes under consideration, provisions of the SPEED for BEAD Act and Roth’s responses to questions for the record offer clues. Those clues suggest the possibility of changes to the cascade of technology options established in the BEAD NOFO.
Under IIJA, states are required to first prioritize “priority broadband projects” and then “reliable broadband service.” The NOFO interprets priority broadband projects as constituting end-to-end fiber connections; and reliable broadband technology service as that using coaxial cable, digital subscriber line technology or licensed fixed wireless. The NOFO and subsequent guidance contemplate a third type of technology category: alternative broadband technology, a category under which unlicensed fixed wireless and low earth orbit (LEO) satellite service fall under NTIA’s current guidelines. At a high level, the NOFO allows states to consider alternative technology only after first prioritizing priority broadband projects and reliable broadband service. States, however, are empowered to establish the price point at which they will consider alternative technology projects (this price point is called the “extremely high cost per location threshold”).
One path for advancing a tech neutral approach is through revisiting NTIA’s interpretations of priority broadband projects and reliable broadband service. For instance, the SPEED for BEAD Act would elevate unlicensed fixed wireless and LEO technology into the reliable broadband service category. Notably, this change alone would likely have a relatively small impact on the mix of technologies selected for deployment projects. Of those states that have released their results of subgrantee selection, the vast majority of projects are priority broadband projects.
Another option is that the Department expands its interpretation of priority broadband projects. In a question for the record, Senator Jackie Rosen (D-NV) asked Roth if satellite broadband services could be considered a “priority broadband project” under IIJA. Roth did not rule out such a change, but also committed to “consult[ing] with NTIA’s engineers and attorneys” before making any determination. A change to the interpretation of priority broadband projects would presumably have a larger impact on subgrantee selection results.
Another potential change is a cost per location cap. Senate Commerce Committee Ranking Member Maria Cantwell (D-WA) and Senator Rosen separately submitted questions for the record asking Roth whether she might consider a national cap on the cost per location of deployment projects. Again, Roth did not rule out this option, but responded that she would first consult with a wide variety of stakeholders if the issue of a cost per location cap were to come up. Roth also volunteered that, should a per location cap come up, it would need to account for “high-cost areas, including high-cost Tribal areas.” Notably, Senator Shelley Moore Capito (R-WV) wrote to Secretary Lutnick earlier this week urging him to reject a cost cap and allow states to select “[w]hatever technology or combination of technologies works best for the state” while staying within its allocated funding amount.
Downstream Effects: Challenge Processes
Stakeholders should pay close attention to whether changes in the area impact state challenge processes. While every state and territory already has conducted a challenge process, those challenge processes did not examine all technologies. Most notably, state challenge processes did not assess the availability of unlicensed fixed wireless service coverage. However, NTIA’s guidance on Alternative Broadband Technologies did instruct states to do their own informal assessments of unlicensed fixed wireless service coverage before issuing subgrants for such technologies. It is an open question therefore whether the Department of Commerce would deem those assessments sufficient in light of any changes to the classification of unlicensed fixed wireless.
Downstream Effects: Subgrantee Selection
The downstream effect of changes in this area could be pronounced on subgrantee selection processes.
While the majority of states have already started subgrantee selection processes, the new guidelines could result in some, or even all, states restarting those processes—either in whole or in part. For instance, if the Department were to impose a cap per location, states that have already finished subgrantee selection likely would need to revisit project areas that fall above the cap. In such a scenario, one option is that states immediately open those project areas to proposals from unlicensed fixed wireless and LEO providers. But another option is that states first provide provisionally selected subgrantees an opportunity to reduce their proposed cost per location to get under the cap, either by voluntarily reducing the amount of the proposal, or by modifying the project area to remove the highest cost locations. Indeed, the latter option is something that the SPEED for BEAD Act contemplates.
For states that have not yet begun subgrantee selection, a cap would effectively set a reserve price for any proposals. It also could result in states doing away with pre-defined project areas, and instead allow prospective subgrantees to propose their own unique project areas that fall beneath the cap.
Downstream Effects: Non-Deployment Funds
Any changes in this area could also result in an influx of non-deployment funds, absent congressional action on a rescission. For instance, one outcome of a cost per location cap is that many states could spend less of their allocation on last-mile deployment projects, leaving more funds available for non-deployment subgrants.
The NOFO currently provide states with wide latitude on how to use their non-deployment funds. For instance, Delaware is proposing to use some of its non-deployment funding for mobile wireless infrastructure. There could be additional funding available for these types of uses as a result of the new guidance. And of course, the new guidance could also seek to narrow the permitted uses of non-deployment funds. The SPEED for BEAD Act, for example, would direct more non-deployment funding towards workforce development.
Other Potential Program Changes
The Waiver Notice also provides that the agency is reviewing the BEAD program to “remove unnecessary rules and mandates, to improve efficiency…[and] cut unnecessary red tape.” The Waiver Notice is not, however, sufficiently specific to determine the nature of changes under consideration. Nevertheless, stakeholders should keep in mind that certain provisions that have drawn criticism in the past have their origins in the IIJA statute (e.g., low-cost service option, open access provisions, local coordination requirement). While the agency may adopt new interpretations and policies for implementing these directives, it cannot eliminate or waive a statutory requirement.
2. COMMERCE APPEARS TO BE CONTEMPLATING PROGRAM GUIDANCE RATHER THAN A NEW NOTICE OF FUNDING OPPORTUNITY
The Waiver Notice states that the Commerce Department will be issuing a “Policy Notice” to make changes to the program. The use of a policy notice as the vehicle for implementing changes suggests that the Commerce Department will not be issuing a new notice of funding opportunity. Moreover, it leaves open the door that new changes will not conflict with existing provisions of the NOFO, or, if they do, that the agency intends for such changes to be optional, and not mandatory for states and territories.
The Commerce Department regularly has employed policy notices in the BEAD program to provide program guidance. Notably, program guidance typically informs the public of an agency’s policies or legal interpretations, but does not supersede a notice of funding opportunity. In the case of BEAD, the Commerce Department’s policy notices have addressed how the agency will apply IIJA, the NOFO and applicable regulations. In some instances, the agency has used policy notices to provide notice of relaxed interpretations of certain requirements, and guidelines that states must follow should they wish to avail themselves of the flexibility that comes with such interpretations. See, e.g., BEAD Financial Capability Alternatives Policy Notice, BEAD Alternative Broadband Technology Policy Notice. But as a general matter, the contents of these guidance documents do not conflict with provisions of the BEAD NOFO.
Of course, there are two important caveats to all of this. First, the Commerce Department can still make significant changes through program guidance. And second, nothing prohibits the agency from pairing a Policy Notice with amendments to or waivers of significant provisions of the NOFO.
If any forthcoming program guidance does impose mandatory requirements that conflict with existing provisions of the NOFO, it could set the stage for legal challenges from states and territories opposed to those requirements.
3. A 90-DAY EXTENSION WILL REQUIRE STAKEHOLDERS TO ACT QUICKLY IN AT LEAST A DOZEN STATES
The 90-day duration of the Final Proposal deadline extension requires that BEAD stakeholders act very quickly to adjust to the guidelines in some states. Under the original program guidelines, states and territories were given six months to develop their Initial Proposals, and another 12 months to implement the processes envisioned in those proposals. Or put another way, states had a combined 18 months to develop and implement challenge processes and subgrantee selection processes so 90 days will require a sprint if changes are significant.
Because NTIA approved Initial Proposals on a rolling basis, the impact of a 90-day extension will be different in every state. For stakeholders in a state like Texas, which was the final state to have its Initial Proposal approved, there likely will be ample time to adjust to any changes brought about by new federal guidance. But a dozen states will have Final Proposals due by September or earlier. The 90-day extension means that these states will need to develop and implement changes very quickly. As a result, even if new guidance is issued this month, stakeholders will have a very short timeframe for adjusting their strategies in those states with upcoming deadlines.
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Stakeholders hoping to participate in the BEAD program should start developing strategies now in preparation of any new potential changes in this program. In the meantime, Akin will continue to monitor developments and provide updates as the future of the BEAD Program comes into focus.
1 This alert does not address the merits of issuing new guidelines at this juncture of the program or the policy or legal merits of the potential changes addressed herein.
