NTIA violated Congressional Review Act with broadband program changes, GAO says

The Government Accountability Office on Tuesday said that the National Telecommunications and Information Administration violated the Congressional Review Act when it released new rules for the Broadband Equity, Access, and Deployment program over the summer without first submitting them to Congress.

The findings, which were shared in a decision published to the GAO’s website on Tuesday, comes after the comptroller general was asked by Sen. Michael Bennet, a Democrat from Colorado, on June 10 to determine whether the NTIA’s policy notice was a “rule” subject to the requirements of the Congressional Review Act. The act holds that before a rule can take effect, an agency must first submit it to both houses of Congress and the comptroller general for review.

In its decision, the GAO said it came to consider the updated BEAD program guidance as a “rule” under the CRA because it came from a federal agency in an official capacity, and that the changes impacted future policy and procedure. It also was found to be a rule due to the scope of its impact, which affected all eligible entities under the BEAD program, not just one party involved.

The new rules, which delivered substantial changes to the broadband program and forced most states to redo large portions of their spending proposals, were met with concern from state lawmakers, state broadband chiefs and advocacy groups. Commerce Secretary Howard Lutnick said the changes were intended to rollback some of the “burdensome regulations” imposed by the administration of former President Joe Biden and the bidding internet service providers.

But the GAO claims that because NTIA did not submit a CRA report to Congress or the comptroller general regarding the new rules, they are likely to be considered legally ineffective until the formal submission happens, which opens the rules to potential legal challenges.

Revati Prasad, executive director of the Benton Institute for Broadband & Society, said that the GAO’s finding means that the program requires more oversight as it continues to affect policy. The NTIA has yet to release new rules for how states can use their BEAD nondeployment funds, the leftover dollars that many states had planned to use for digital training and other related programs.

“By failing to follow the proper process to ensure Congressional oversight, NTIA has again created additional uncertainty and delay for states,” Prasad said. “The Benton Institute urges members of Congress to review the June 6 changes as soon as they are submitted and to continue providing meaningful oversight of this critical broadband deployment program, which aims to finally close our access divide.”