Digital Beat

NDIA and Government Offer Joint Status Report in Digital Equity Act Case

In a joint status report filed August 17, 2026, the National Digital Inclusion Alliance (NDIA) and the U.S. government asked a federal court to freeze the case until two weeks after the National Telecommunications and Information Administration (NTIA) issues its new funding notice (NOFO)—or until Friday, January 15, 2027, whichever comes first.

For the cities, counties, nonprofits, libraries, community colleges, and workforce organizations planning around a December application window, two things in this filing matter more than the stay itself. First, the government used a word it had not used before: this will be a "superseding NOFO." Second, NDIA attached a two-page list of what it wants a reopened Digital Equity Competitive Grant Program to look like—including allowing all 65 organizations originally recommended for awards to revise and resubmit new applications. The government objects to that list being in the court file at all.

A Notice of Funding Opportunity, or NOFO, is the document that announces a federal grant competition, sets the rules, and opens the application window.

Where Things Stand: A Recap

The Digital Equity Act of 2021, part of the Infrastructure Investment and Jobs Act, created the Digital Equity Competitive Grant Program to fund digital inclusion work by local governments, nonprofits, community anchor institutions, school districts, and other eligible entities. The Digital Equity Act directs NTIA to consider whether applications would increase internet access and broadband adoption among eight "covered populations" defined by the law. The seventh— "individuals who are members of a racial or ethnic minority group" (§ 1721(8)(G))—is the one at issue.

The government terminated the program in May 2025. NDIA sued. On July 15, 2026, Judge John D. Bates held that "members of a racial or ethnic minority group" is an unconstitutional racial classification but that it is severable, meaning that provision alone can be set aside while the rest of the statute continues to operate. On August 3, the government told the court it would reinstate the program without that covered population, targeting a December 2026 reopening. The court then ordered a further status report—the August 17 filing is that report, submitted "[i]n compliance with this Court's order of August 5, 2026."

What the Two Sides Agree On

The joint portion of the filing is short and, on its face, cooperative:

NTIA will reinstate the program "in a manner that does not implement § 1721(8)(G), but that otherwise incorporates the statutory requirements."
NTIA will review applications submitted under the new NOFO "consistent with the statutory evaluation criteria."
A stay of district court proceedings—expressly including the government's deadline to answer the complaint, and discovery—until two weeks after the NOFO issues or January 15, 2027, whichever is earlier.
A meet-and-confer on the status of the NOFO no later than Friday, October 16, 2026.
Periodic status reports until the NOFO is issued (although NDIA and the government don't seem to agree on how often).
The mootness question is put off. A case becomes moot when there is no longer a live dispute for a court to resolve—and if NTIA reopens the program, the government will likely argue NDIA has already gotten what it sued for, leaving nothing to decide. The parties agree to propose a schedule for briefing that question "at a later date as necessary," with the stay to remain in place while they do.

The parties also flag, "[f]or the Court's awareness," that after the NOFO issues they may discuss extending the stay until awards are actually made—taking no position yet on whether that would be appropriate. Practitioners should read that as a signal that this case could stay frozen past January.

Where They Disagree

While the two sides agree on a number of points, there are plenty where they disagree.

How often the government must report.

NDIA wants status reports every 30 days "in order to ensure prompt attention to reinstatement of the Competitive Grant Program that has been unduly delayed due to Defendants' actions that are the subject of this litigation." The government wants 60 days, arguing its commitment to reopen the program "is entitled to a presumption of regularity."

Whether four months is too long.

NDIA "believes that four months to issue the NOFO is longer than reasonably necessary." The government objects, citing the steps required—drafting consistent with the statute and the court's order, the Paperwork Reduction Act, inter- and intra-agency clearances, and "NTIA's obligation to simultaneously administer various other grant programs, such as the $42 billion Broadband Equity Access and Deployment (BEAD) program."

The government notes that NTIA began work on the first Competitive Grant Program NOFO in December 2023 and "took seven months to draft, approve, and ultimately publish that NOFO, in July 2024." The current timeline, it argues, "would cut the previous NOFO's timeline nearly in half."

Whether NDIA gets to hand NTIA a to-do list.

This is the sharpest exchange in the filing, and it turns on Exhibit 1.

What NDIA is Asking For

NDIA's Exhibit 1 is two pages and opens with a self-limiting principle: changes to the NOFO "should be limited to the scope of the issue at hand in the case and administrative procedures to ensure the smooth and timely allocation of funds." NDIA then makes three sets of requests:

On money: The updated NOFO should combine fiscal years 2024, 2025, and 2026 funds—"all remaining funding made available under the DEA Competitive Grant program"—into a single notice and release it in a single round.
On prior applicants: "The 65 Organizations originally recommended for award, including the three whose contracts were terminated, should have the option to revise their original application and resubmit." NDIA's stated reason: the new NOFO must follow the same statute, and each of those organizations "spent substantial time, resources, and capacity" on applications and on contract and budget negotiations with NTIA and the National Institute of Standards and Technology (NIST).
On timing: A 60-day application period (extended if the deadline lands over the Christmas or New Year holidays); webinars and technical assistance throughout that period; rolling awards beginning within 45 days of the application deadline; fully executed contracts for 95 percent of funds under contract within 120 days of the deadline; and use of "[t]he original rubric" to score applications.

The Government's Answer

The government "oppose[s] the inclusion of an exhibit containing Plaintiff's suggestions as a court filing and any notion that they are—or indeed could be—bound by the same." The government characterizes NDIA's requests as "particularized application deadlines and even suggested webinars," calls them "wholly untethered from [Department of Commerce's] statutory obligations," and argues that the application deadline, contract execution timeline, scoring rubric, and rolling-award decision "are committed to the agency's discretion," citing Swinomish Tribal Community v. FERC, 627 F.2d 499, 510 (D.C. Cir. 1980).

The government states: "Plaintiff may not reshape this case into a vehicle for general interest-group oversight of the agency." The government adds that NDIA "is welcome to submit a new grant application when NTIA publishes the NOFO," and cites Lujan v. National Wildlife Federation, 497 U.S. 871, 899 (1990), and Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 67 (2004), for the proposition that the Administrative Procedure Act does not contemplate judicial oversight of the "manner and pace" of agency compliance.

Readers can now weigh that characterization against the document itself, which is short, procedural, and explicitly scoped. The government's legal point stands independently: nothing in the court's July ruling requires NTIA to adopt any of it, and several of the items NDIA lists are conventional matters of agency discretion. Whether "wholly untethered" is a fair description of a list that asks NTIA to reuse its own prior rubric and honor its own prior recommendations is a judgment readers can make for themselves.

Carefully Chosen Words

Some phrases from the filing stick out.

"Superseding NOFO."

As noted above, the government's own term for the coming notice. Combined with the joint statement that NTIA will review applications submitted "under the Competitive Grant Program NOFO," this is the clearest indication yet that the 2024 competition is over and applicants start again. NDIA's Exhibit 1 request that prior applicants be allowed to "revise their original application and resubmit" is an accommodation within a new round, not a revival of the old one.

"Not meant to prevent (and cannot prevent)."

The government reserves the right to brief mootness notwithstanding the stay, because mootness "is an issue of this Court's subject-matter jurisdiction." The parenthetical is the government telling the court that this reservation is not a matter of party agreement at all.

"Reserves the right to move to lift the stay."

NDIA's counterweight—available "should the NOFO be inconsistent with the statutory requirements." Note what triggers it: a NOFO that violates the statute, not a NOFO that arrives late or ignores Exhibit 1.

What's Still Missing

For organizations waiting to see what a revised Competitive Grant Program will look like, there is still some missing information

A dollar figure from the government. NDIA requests FY24, FY25, and FY26 funds in a single round. The government does not respond to that request anywhere in the filing.
Any response to the 65 organizations. The government's objection addresses deadlines, rubrics, and webinars. The filing does not say whether previously recommended applicants will get any consideration.
The State Digital Equity Capacity Grant Program, still unaddressed as it is not part of this case.
The reimbursement restriction. In April 2025, NTIA told NDIA that costs associated with diversity, equity, and inclusion conferences, training, and professional development would not be allowable expenses under its grant. NDIA separately challenged that policy; Judge Bates dismissed the claim as premature precisely because it was not yet clear whether the policy would carry over to a reopened program. That question is now live, and this filing does not answer it.
A firm NOFO date. The stay's January 15, 2027 backstop is the closest thing to one, and it is a litigation deadline, not a grantmaking deadline.

What to watch

As this case moves forward, here is what we'll be looking for.

October 16, 2026—the meet-and-confer deadline. The first status report after it should indicate whether December is holding.

The Federal Register. The government again invokes the Paperwork Reduction Act. A notice from NTIA seeking comment on the application package would be public confirmation that the NOFO is moving. The absence of a notice would not by itself mean December has slipped—but its appearance would be the first independent evidence that it hasn't.

Whether the stay gets extended past awards. The parties floated it. If it happens, this case could remain frozen through the entire grantmaking cycle it was filed to protect.

The government has now committed twice, in writing, to reopening this program. NDIA has agreed to stop pressing while it does. What neither the filing nor the court has established is what happens if December comes and goes.