Using BEAD Non-Deployment Funds for NG911

An ongoing tug-of-war is underway in Washington over how to spend the “Benefit of the Bargain” savings from the Trump Administration’s implementation of the Broadband Equity, Access, and Deployment (BEAD) program. While it may have been advisable to return these taxpayer funds to the U.S. Treasury, there is a strong case to be made that a significant portion could and should be allocated by the Administration to upgrade our nation’s 911 calling center technology. Doing this under defined conditions could be a reasonable use of taxpayer funding, consistent with the underlying statute, and would result in a more effective 911 system for the betterment of all Americans.

It doesn’t take a genius to see that Next Generation 911 (NG911) should be high on the list of potential BEAD non-deployment spending. On the one hand, Congress has been working through the relevant committees to consider the issues and draft legislation to upgrade the thousands of Public Safety Answering Points (i.e., the centers and personnel who take calls from Americans in emergencies, commonly called PSAPs) from analog to digital technologies, but there are no ideal funding mechanisms to fully implement the needed upgrades. On the other hand, the Administration has approximately $21 billion in leftover BEAD funds, and everyone is reaching out with a variety of good and bad ideas. Marrying these two dynamics, which shouldn’t have to come at the expense of other sound proposals, could improve the nation’s overall public safety and prevent the waste of these BEAD funds.

Overwhelming credit is due to the tireless efforts of public safety officials to keep Americans safe during their most difficult life moments. From those who take the call to responders to health care providers providing care, everyone plays a part in an emergency. But there is little debate that the current state of the public safety communications equipment and technology has challenges and limitations. Advances in digital networks can enhance public safety capabilities and address key deficiencies in existing systems. That likely means a wealth of benefits: fewer outages, shorter response times, more lives saved, and lower crime rates. It's what most citizens hope for out of their government, and an investment by the Commerce Department and the Trump Administration could make this outcome a reality.

Under a BEAD-funded scenario, the Federal government would focus on funding network, equipment, and other high non-recurring costs underlying NG911 implementation. By providing any such funding, Federal officials must exercise appropriate control and oversight. The notion that billions of dollars should be handed to states and localities for NG911 modernization efforts without properly crafted, narrowly drawn stipulations is not defensible. Defining the appropriate level of Federal involvement is critical to ensure a fully functional network is in place for years to come – all without fleecing American taxpayers.

To facilitate this conversation, the following outlines several conditions that should be in place before the Federal government funds state and local governments’ NG911 systems. 

 

Set Appropriate Budget and Divide Funding into Tranches

One resounding lesson from BEAD is that, with appropriate care and pressure, program spending can stay within a reasonable budget. There is no need to overspend or build gold-plated NG911 networks. Past cost estimates for the nation’s full transition to NG911 were outrageously high and unacceptable, with experts suggesting they could be inflated by 80-90 percent. The Commerce Department must properly size any NG911 allocation. Moreover, an effective way to prevent misuse of funds is to split the allocation into two or more parts, each with appropriate deliverables, rather than issuing the entire award upfront. Doing so would establish a continuous control mechanism to keep all parties aligned with the mission.

No Rerouting NG911 Money

Upgrading to NG911 will be a significant undertaking and will require substantial state and local cooperation. In some instances, a state may be able to complete its conversion with less funding than the Commerce Department provides. In such circumstances, these “extra” funds should not be treated as the state's money to use as it sees fit. Moreover, a state should not be allowed to expand its view of what qualifies as NG911 purposes in order to divert funding to something else. There should be strict restrictions that any Federal NG911 funds be used only for the intended purpose, with appropriate mechanisms for recapturing misspent funds.  

 

No Diversion of Funds

For many years, a select number of states diverted their respective portion of the $4 billion-plus in nationwide 911 fees imposed on wireless service consumers to other state spending. That often left those states’ 911 networks underfunded and with inadequate capabilities. According to the Federal Communications Commission's most recent report to Congress, these diversionary practices have ended, except in Nevada, New Jersey, and New York. The House Energy and Commerce Committee's NG911 bill under consideration appears to prevent this egregious behavior for any grant awards, but the Commerce Department must ensure that no state receives BEAD non-deployment funds for NG911 unless it provides assurances that it will not divert those funds.

Public Accountability and Representation

Once awarded, the Commerce Department should expect extensive input and feedback from public safety officials on the progress of their respective NG911 network upgrades. However, that is only one side of the story. Rigorous independent oversight is needed to ensure funds are spent properly and projects are completed on time. This oversight should also include review and engagement from taxpayer groups, the communications industry, and consumer representatives (given that consumers will be expected to pay for the continued upkeep of the new systems). Creating 911 advisory boards and similar bodies composed solely of public safety officials is insufficient. The broader community must be included from the start.

Consolidation/System Right Sizing

Despite the many benefits of migrating to NG911, one issue that hasn’t received enough attention is the need to merge thousands of overlapping PSAPs. When technology has reduced the need for so many, why isn’t some form of consolidation on the table? In essence, the American people will fund a bloated NG911 system that can be run more efficiently without compromising 911 effectiveness or harming residents. Some effort is needed – either directly or by empaneling a group of experts – to right-size the PSAP system. Doing so will reduce overall costs and eliminate confusion when calls are received outside PSAP boundaries.

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Using non-deployment BEAD funds to upgrade PSAPs to NG911-capable status can be a sound use of funds under the right framework. Adopting the essential conditions outlined above from the outset will prevent misuse of funds and enable an update to a key component of the overall public safety communications system.

For Media Ownership, 39 Percent Rule is Law, 

NOT a Suggestion

As the Senate prepares to examine media ownership rules tomorrow, traditional over-the-air broadcasters are undeniably in a difficult spot. Once trusted titans, local television stations now face enormous headwinds as consumers and advertisers shift away like sand at low tide. In response, some national station owners are now pushing for regulatory relief from the Federal Communications Commission (FCC) to allow bigger station groups to reach more viewers. However, as a veteran Congressional staffer and former FCC Commissioner, I can attest that authority to do so comes with an ultimate limitation. Specifically, Congress intentionally and permanently blocked local broadcasters from holding or controlling licenses with a collective national audience reach above 39 percent. Arguments suggesting otherwise or trying to bypass this prohibition lack factual basis or value. Local broadcasters’ only recourse—good or bad—is to advocate for Congress to amend the law.

Understanding the national ownership cap, as it is commonly referred to, requires a brief review of the history behind the statute. While these trips down memory lane often elicit eye rolls, the legislative history matters. It sheds light on why Congress set the cap at 39 percent.

In the early 2000s, the FCC attempted to align media ownership reviews with antitrust standards while approving a merger that exceeded the then-current cap. This caused an uproar from some within Congress, and the Senate Commerce Committee painfully considered legislation to statutorily tie the agency’s hands. Key legislators were worried on several fronts, including the impact on the network-affiliate power balance.

When the legislative process dragged, then Senator Ted Stevens (R-AK) inserted the current national cap language into an appropriations bill. The final text capped ownership at 39 percent, blocking any sell-off of stations under the pending merger, and ended the applicability of the FCC’s quadrennial media ownership review process to the national cap.

Those wanting to ignore the national cap make an interesting claim. Foremost, they argue that Congress went through the difficult task of shutting the front door but left a window open, allowing the FCC to change, waive, or dismiss the cap, at its leisure, under a “preserved authority.” This seems based on the notion that by specifically precluding the use of the quadrennial review, the language doesn’t specifically prevent a new agency from proceeding to alter the cap.

But this is pure fantasy. To effectuate its intent, Congress needed to turn off the quadrennial (which was changed from biennial in the same law) to prevent that process from subsuming its new national cap. On the other hand, Congress did not need to explicitly stop a future FCC item from changing the cap. That is because it specifically established a statutory limit, which the agency cannot dismiss or waive. Reading the law otherwise is to demand that the Legislative Branch always insert belts and suspenders into lawmaking. Had Congress wanted to leave discretionary authority for the agency on the issue, the body was well-versed on how to do so.

Even ignoring Congressional intent, proponents cannot explain how this cap contrasts with other provisions in the statute, such as foreign ownership, that explicitly allow agency flexibility to exceed the established thresholds, while this provision does not. Are we to believe that Congress has written implicit waiver authority into any and all provisions of the Communications Act that don’t explicitly provide for it? What would be the justification for the hard-fought inclusion of forbearance authority or other flexible, deregulatory provisions in the law, if the Commission is allowed to ignore existing limitations at will? Believing this would reduce the legislative process for communications matters to a new low.

Having discussed this issue with scores of communications practitioners over the last 20 years, I cannot in good conscience support making an end-run around Congress because some think it is the easier path to a desired outcome.

All of this is not to suggest that certain broadcasters may not have substantive merit to their need for relief. But even if granted, keep in mind that it would likely only be helpful to a select few companies seeking to grow beyond the limits today, and some desiring a profitable exit. Clearly, not every broadcaster wants to bulk up or is desirable enough to be merged into a larger entity. Within most television markets, the creation of very large broadcast station groups could shift the competitive balance. Any residual medium and smaller-sized broadcasters should be deeply leery of the merger activity's benefits for the entire sector.

As my mother used to say, life isn’t fair. Broadcasters’ future path in a digital world is a difficult one. The fix, however, is not to pretend a legally crafted and enacted provision of law became magically meaningless for convenience’s sake.