Government Relations Update March-April 2024

By Samuel Burns - Internet2 Policy Advisor

FCC Adopts Net Neutrality Rules

 On April 25 the Commissioners at the Federal Communications Commission (FCC) voted 3-2 in favor of a declaratory ruling, order, report and order, and order on reconsideration that reestablished the Commission’s authority around safeguarding a fair and open internet. While this new action shares commonalities with the FCC’s 2015 Open Internet Order, there were some notable additions that go beyond the 2015 order.

First, the FCC included a provision in the new order explicitly stating that it would not preempt state regulations of Broadband Internet Access Service (BIAS) that largely “mirror or parallel” federal rules.

Second, the new order highlights provisions related to bolstering national security and law enforcement as a key justification for revisiting this issue. The order includes a provision that subjects BIAS to Section 214 of the Communications Act as well as other provisions that would give the FCC further authority to protect against anti-competitive and harmful activities by non-U.S. based BIAS providers.

Finally, the order includes a recognition from the FCC that Border Gateway Protocol vulnerabilities and threats to Domain Name System are increasingly important and that the added authority provided by the order will help the FCC address those and other cybersecurity challenges in future rulemakings.

The order likely faces challenges in federal courts both to the authority of the FCC to take these actions as well as to the details of the order itself and we should also expect further rulemaking proceedings by the FCC to clarify elements of this order and also to build on it.

 Draft Bipartisan Privacy Rights Bill Unveiled

On April 7, a discussion draft of a sweeping data privacy bill was made public by Senator Maria Cantwell (D-WA) and Representative Cathy McMorris Rodgers (R-WA-5), the chairs of the Senate Commerce, Science, and Transportation Committee and the House Energy and Commerce Committee respectively.  This draft legislation, known as the American Privacy Rights Act (APRA) aims to address a wide range of data privacy challenges faced by Americans as they navigate online spaces and manage their digital footprint.

The bill would provide several protections to consumers, such as limiting data collection, retention, and transfer by service providers to only the scope of what’s necessary for the requested service and requiring covered entities to provide opt-out opportunities as well as mechanisms for requesting the deletion of their data. The draft bill would also create new obligations for covered entities to comply with such as transparency rules and data security standards, while also granting authority to the Federal Trade Commission to enforce violations of these new rules. States would also be authorized to bring civil actions on behalf of residents of their jurisdiction and a private right of action would be created to allow individuals to file their own lawsuits for certain violations of the provisions of this bill. Finally, the draft includes a preemption of state law to ensure that there is a clear national standard for these proposed rules, though it does include exceptions for state laws that cover issues such as protections for health information or the protection of the privacy rights of employees.

While this is just a discussion draft and has not been formally introduced in either the House or Senate, this bill marks a noteworthy step by leaders in Congress to come up with comprehensive solutions and a clear set of national standards to mitigate the harms many Americans are facing online today with respect to their data. Over the coming weeks the bill’s authors will continue to take feedback from stakeholders across the country and work towards finalizing a version of the bill that they believe can move through Congress.

Digital Equity Program Allocates $811 Million in Funding

On March 28, the National Telecommunications and Information Administration (NTIA) announced approximately $811 million in funding to support the Digital Equity State Capacity Grant Program as it moves into the implementation phase. This program aims to address the need for resources to help educate, train, and enable Americans all around the country to fully benefit from the increased access to quality broadband services as they become available.

It is a vital part of ensuring that the federal infrastructure programs investing in expanding broadband access can be as successful as possible in bringing new opportunities to communities that need them most. This announcement was accompanied by a Notice of Funding Opportunity (NOFO) which opens the door for applications from state, Tribal, and territorial governments to receive their proportion of the available funding to operationalize the digital equity plans they have spent the last year crafting and begin helping to meet their needs of their communities.

The announcement also signals that the $1.25 billion Digital Equity Competitive Grant Program, which is open to a wider variety of non-governmental participants, will soon be coming online. Program applications will likely become available this fall and will provide an opportunity for nonprofits, community anchor institutions, and other organizations to seek funding for creative solutions aimed at tackling digital equity challenges across the country that may not be addressed by the plans laid out for this Digital Equity State Capacity Grant Program.

States applying for funding under the Digital Equity State Capacity Grant Program NOFO will have until no later than May 28 to submit their application materials. Territories, not including Puerto Rico, will have until July 31. Tribal entities will be able to submit their applications beginning September 25 and the window will not close until February 7, 2025.

Federal Government Funded Through End of FY 2024

 On March 9 and March 23 President Biden signed two pieces of legislation into law (P.L. 118-42 and P.L. 118-47 respectively) which funded the government and finally ended the risk of a shutdown in the 2024 fiscal year. Unfortunately, these pieces of legislation brought a series of cuts to agencies with missions that impact the R&E community. For example, the National Science Foundation (NSF) received $9.06 billion, which amounts to a roughly 8.3% decrease in funding from last year. Additionally, the National Institute of Standards and Technology (NIST) received $1.46 billion, nearly 12% less funding than in fiscal year 2023.

These bills reflect the extremely contentious battle over government funding within the House Republican Conference over the past year, even after the bipartisan agreement last summer guaranteed some cuts and flattening out for the budgets of many agencies over the next two years. After months of uncertainty this imperfect agreement was reached to ultimately end the cycle of short-term continuing resolutions to keep the government running so that Congress can now turn towards preparations for the 2025 fiscal year.

That process is likely to prove just as challenging, particularly with the added dynamic of the 2024 elections at play. While it is difficult to say what may happen as we draw closer to the September 30 deadline for funding bills to pass, it seems likely that Congress may need to delay a resolution to next year’s funding until after the results of the election indicate which way the political winds are blowing.

Biden Administration Releases 2025 Budget

 On March 11 the Biden Administration released its budget proposal for FY 2025 to outline its priorities for the coming year which include notable provisions with funding for broadband, Minority-Serving Institutions (MSIs), and artificial intelligence.

Among the broadband related provisions, the Administration included its pre-existing $6 billion request to Congress for funding to maintain the ACP, highlighting the importance the White House places on this critical program.  The budget also includes $112 million for the Department of Agriculture’s ReConnect program, which provides both grants and loans to support broadband deployments in unserved rural areas with a particular focus on Tribal areas.

This budget includes several noteworthy items to provide added opportunities and resources for Historically Black Colleges and Universities (HBCUs), Tribally Controlled Colleges and Universities (TCCUs) and other MSIs. One of the most impactful would be doubling the funding to $100 million for the Department of Education’s Research and Development Infrastructure program. This program provides support to four-year HBCUs, TCCUs, and MSIs to “implement transformational investments in research infrastructure, including research productivity, faculty expertise, graduate programs, physical infrastructure, human capital development, and partnerships leading to increases in external funding.” The budget would also include $1.4 billion for STEM education and workforce development programs at NSF that have an emphasis on diversity, equity, inclusion, and accessibility, in furtherance of goals laid out in the CHIPs and Science Act.

The provisions in the budget relating to AI are substantial. First and foremost is $2 billion to NSF for research and development in critical emerging technology areas in alignment with CHIPS and Science Act priorities of boosting U.S. competitiveness in science and technology, including AI, advanced manufacturing, advanced wireless, biotechnologies, microelectronics and semiconductors, and quantum information science.

There is also a request for $30 million for the National AI Research Resource (NAIRR) pilot to formalize the ongoing effort to grant access to AI research tools to a broader group of students, professors, and researchers across the R&E community. Additionally, there would be $455 million in investments to enhance the Department of Energy’s computing capabilities and support the development of AI testbeds to build foundation models for energy security, national security, and climate resilience as well as tools to evaluate AI capabilities to generate outputs that may represent nuclear, nonproliferation, biological, chemical, critical-infrastructure, and energy security threats or hazards. This funding would also invest in continued support for training new researchers from a diverse array of backgrounds capable of meeting the rising demand for AI talent.

While the many of the items outlined in the budget are unlikely to become law this year given the dynamics at play on Capitol Hill, the document still serves as a useful blueprint for the current policy and funding priorities of the Biden Administration and grants insight into what this White House may push for if the political winds are at their back this time next year.

Additional highlights can be found in a fact sheet  released by the White House which provides an overview of key proposals within the budget.

Funding for ACP Nears Exhaustion

 The FCC’s Affordable Connectivity Program (ACP) is soon to run out of funding, likely forcing the program to shut down for the foreseeable future. The ACP is a federal subsidy to support low-income households purchasing broadband connectivity; it was created by the Infrastructure Investment and Jobs Act (IIJA) of 2021 as an evolution of the FCC’S Emergency Broadband Benefit Program that supported households during the height of the COVID-19 pandemic.

The IIJA originally provided the FCC with $14.42 billion to administer the ACP, but that allotment of resources is rapidly diminishing. The FCC has announced that April will be the last month in which the roughly 23 million households across the country currently receiving support will be able to utilize the full benefit offered by the program. This accounts for roughly 1 in every 5 households in the United States. In May, the FCC will have to reduce benefits to extend the life of the program unless Congress is able to act and provide additional funding to support the ACP.

To that end, legislators in the House and Senate unveiled the bipartisan Affordable Connectivity Program Extension Act of 2024 (S. 3565 and H.R. 6929) back on January 9. This bill would provide an additional $7 billion to ensure that the ACP could continue operating into 2025. Unfortunately, despite having broad bipartisan support in both chambers of Congress the legislation was not included in the federal funding packages that passed in March to keep the government open through the fall.

While supporters of the program in Congress continue to try to find alternatives to prevent the ACP from shutting down, it seems unlikely that a solution will be possible in time to avoid at least some interruption to benefits for current subscribers.