On June 6, the National Telecommunications & Information Administration (NTIA) released a “Policy Notice” revising the prior Administration’s Notice of Funding Opportunity for the landmark $42 billion Broadband Equity, Access and Deployment (BEAD) Program, enacted by Congress as part of the bipartisan Infrastructure Investment and Jobs Act back in late 2021. The Trump Administration abolished the program’s preference for fiber, opened the program to bids from all technologies, rescinded prior approvals for three states, and directed the states to hold another round of bidding—the “Benefit of the Bargain” round—to select the lowest cost option, with Final Proposals due in 90 days.

Since then, state broadband offices have gone through the seven stages of grief, interested stakeholders were quick to condemn or praise the new guidance, and everyone is trying to figure out the real impact of this decision.

Many seem to assume that the decision will steer most of the BEAD funding to Elon Musk’s Starlink satellite service. I’m not convinced that outcome is inevitable. Here’s why:

All technologies are now permitted to compete for BEAD funding, but that doesn’t necessarily mean they will be competing head-to-head in every geographic area.

By law, states are required to pick “Priority Broadband Projects” over non-priority projects—and the states retain the power to determine which projects qualify as “Priority Broadband Projects.” The recent Policy Notice adopts the statutory language—which defines such a project as one meeting the BEAD performance standards, while also being capable of easily scaling speeds over time to meet the evolving connectivity needs of households and businesses and support the deployment of 5G, successor wireless technologies, and other advanced services.

The burden is on the applicant to demonstrate that its project can easily scale speeds over time to meet evolving connectivity needs—not on the state broadband office to disprove that proposition. The Notice expressly directs applicants to provide supporting documentation sufficient for the state to determine that the proposed network architecture for each specific project area meets this standard. To be sure, NTIA warns states that it reserves the right to reverse a state’s determination—but that should not deter states from exercising this review power thoughtfully. Their citizens deserve it.

So, what does this mean in practical terms for the BEAD road ahead?

The laws of physics matter.

Priority broadband projects must demonstrate they will be capable of delivering speeds, both download and upload, well above today’s BEAD minimum of 100/20 Mbps. For the upcoming Benefit of the Bargain bidding round, state broadband offices can and should demand a detailed project plan from satellite applicants seeking Priority Broadband status explaining in detail how the applicant will augment their existing or planned network to scale to higher levels of performance within four years. Applicants should be required to explain, in technical terms, precisely how they would scale beyond 100/20 to provide higher levels of connectivity. More is necessary than high level assertions.

The best evidence that a particular network can perform better than 100/20 Mbps is that it has already done so in the marketplace, on a widespread basis. Ookla recently reported that less than 18% of Starlink subscribers are consistently receiving 100/20 Mbps service today, in large part due to Starlink missing the mark on upload speeds. For a service provider like Starlink that is not consistently meeting BEAD minimum requirements today, it would be reasonable to probe more deeply into how they will adequately serve evolving connectivity needs in the future when higher speeds for both upload and download will be expected. It would be prudent for state broadband offices to inquire, for instance, about where the additional ground stations will be installed, and whether the applicant has contractual commitments for increased fiber backhaul. Applicant submissions should be reviewed by engineers under the state’s direction.

Absent a proven track record, states should be looking for concrete evidence of an actionable plan to boost network performance in the future, consistent with accepted engineering standards and the laws of physics. Just as the D.C. Circuit said when reviewing the FCC’s decision to deny LTD Broadband’s long-form application for RDOF funding, it’s reasonable to take a hard look when a company is claiming to be able to do something that it never has done before. That’s even more true when a company is claiming to be able to do something that no other similarly situated company has ever done before.

Appropriate inquiries on the technical capabilities of networks to meet the statutorily mandated Priority Broadband Project requirements are necessary to ensure the benefit of the bargain that Congress contemplated in its investments in broadband. Doing so is a technology agnostic proposition and consistent with the tech neutral approach of the latest NTIA guidance.

Scope and scale matter.

NTIA has made it clear that states are to determine whether each project qualifies as a Priority Broadband Project, without making any categorical exclusions based on technology. But it’s entirely appropriate for a state to consider the scope and scale of what an applicant proposes to do in other project areas, because that has some bearing on their ability to meet evolving connectivity needs in each project area.

Applications for the Benefit of the Bargain round will be submitted virtually simultaneously across the country within a very tight time frame, to meet the 90-day Final Proposal deadline. Each state broadband office should require applicants to indicate how many Broadband Service Locations they are bidding for nationwide. Applicants can’t hide behind the “we don’t know” excuse or the “we haven’t finalized our plans for other states” excuse.

Any satellite applicant that is planning on bidding on all the locations in a given state, or all the locations in the nation, needs to be able to explain to the state broadband office how it will augment network capacity over the period of performance to meet the evolving connectivity needs of all of the locations that it is seeking to serve. With Starlink already capacity-constrained in certain areas of the country, with waitlists and congestion charges, that’s a legitimate inquiry for state broadband offices. Just as fiber applicants to date have been required to submit detailed engineering plans for planned fiber networks, satellite providers should similarly be required to submit detailed plans with launch dates for additional satellites and how they would augment existing terrestrial assets sufficient to support a significantly larger customer base.

Pay attention to real world evidence.

Last year, Maine implemented an innovative program to make Starlink service available on a subsidized basis to the 8,800 households in the state that were entirely unserved. To date, only 4% of eligible subscribers have enrolled in the program. With Maine residents not finding Starlink’s service meets their connectivity needs today, how can we confidently know it will meet the evolving connectivity needs of the future? Other states should take note.

Priority Broadband Projects must serve business needs, as well as residential homes.

Congress defined a Priority Broadband Project as one that meets the evolving connectivity needs of households and businesses. OpenVault’s latest Broadband Insights report indicates that business subscribers are seeing significant growth in both upstream and downstream peak usage. With cloud computing and video conferencing already ubiquitous today, and with increasing use of AI and other developments on the horizon, there can be no question that businesses will require greater connectivity in the future, more than your average home. Symmetrical service is a necessity for many businesses with large data upload needs. State broadband offices should be requiring satellite applicants seeking Priority Broadband Project status to demonstrate with specificity how they will meet the evolving connectivity needs of the businesses in the proposed project area.

It’s really simple, actually. State broadband offices should just follow the law.

Carol Mattey is a former senior official from the Federal Communications Commission, where she led teams working on initiatives to modernize the FCC’s $9 billion Universal Service Fund to support broadband. She currently is the principal of Mattey Consulting LLC, which provides strategic and public policy advisory services to broadband providers and other entities seeking funding for broadband.

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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