What Can the IIJA Do for Your Internet?

Friday, January 21, 2022

As you may have heard, Congress has appropriated $65 billion for broadband projects within the Infrastructure Investment and Jobs Act (IIJA). Of that, $42 billion is being dedicated to the Broadband Equity, Access, and Deployment (BEAD) Program administered by the National Telecommunications and Information Administration (NTIA). Under the BEAD Program, Maine and every other state will receive at least $100 million to use for broadband projects in unserved (areas without 25/3 Mbps speeds) and underserved areas (those with below 100/20 Mbps speeds). The remaining $37 billion will be distributed among the states based on their share of the nation’s unserved areas. Overall, Maine should expect a significant influx of funding for broadband expansion projects over the next five years. These funds may be utilized by the State or distributed to municipalities through a grant-making program, presumably administered by the newly established Maine Connectivity Authority.

So, what does this mean for municipalities? Notably, the IIJA makes it possible for recipients to fund an eligible broadband project without spending a dime of their own funds. The BEAD Program requires recipients to pay for at least 25% of any project but allows them to use CARES Act and ARPA funding to do so. As a result, municipalities will no longer need to dedicate a significant portion of their coronavirus relief funds to broadband expansion. This should provide significant motivation for communities that may have been hesitant to undertake broadband expansion to reconsider.

Additionally, the IIJA will reduce the overall cost of and increase the potential locations for broadband expansion projects. The IIJA appropriates $1 billion for the aptly named Enabling Middle Mile Broadband Infrastructure (EMMBI) Program. The EMMBI Program funds the expansion and extension of middle mile infrastructure to reduce the cost of connecting unserved and underserved areas. Previously, one of the largest obstacles to any broadband project was finding a way to connect to the internet backbone from more remote locations. ARPA discouraged recipients from investing in middle-mile infrastructure and instead favored the use of relief funds for last-mile projects. The goal was to connect as many people as possible to existing broadband infrastructure as quickly as possible. However, that prevented many more remote recipients from investing in fully wired broadband expansion or required them to invest in wireless or gap network projects. The EMMBI Program will, hopefully, allow Maine to extend critical broadband infrastructure into new areas, reducing the cost of local broadband projects and opening up new areas for future-proof wireline broadband projects.

Though the timeline is not yet fixed, the NTIA will begin notifying states of their share of BEAD Program and other funding this spring. Once those funds are received, Maine will be able to begin the process of distributing them through a grant-making process. To capitalize on this opportunity, municipalities should start developing realistic and competitive broadband project proposals as soon as possible. Time is of the essence.

Please contact us if you have any questions on the IIJA or other broadband funding opportunities to expand broadband access in your community.

What Do the Supreme Court's Vaccination Rulings Mean for Your Business?

Friday, January 14, 2022

Reflecting the deep rift in public opinion concerning the government’s role in dictating how businesses, health care entities and public sector employers ought to act to stem the spread of COVID-19, a divided U.S. Supreme Court yesterday blocked an injunction of OSHA’s emergency rule which would have required an estimated 80 million employees to either fully vaccinate or submit to a regular testing program and mandatory onsite face covering requirement. The Court let a separate rule take effect requiring vaccinations for employees in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments.

With respect to OSHA’s ETS, the Court determined that the Sixth Circuit's decision to lift the injunction on the ETS was unwarranted and re-imposed a stay. Although that ruling does not technically dispose of the underlying legal challenges to the ETS, the decision relieves employers from complying with the ETS during the pendency of the litigation at the Sixth Circuit, and any further appeals. OSHA may opt to push ahead to implement some form of national standard regulation aimed at workplace pandemic prevention, although for now that is unclear.

In determining that OSHA lacked authority to issue the ETS, the Court noted that COVID-19 is not exclusively an occupational hazard, but rather something that everyone faces in their daily lives. Given that OSHA is principally tasked with regulating workplace health and safety, the Court determined that the regulation was likely beyond OSHA's legitimate reach. And, in holding that the balance of equities favored a continuation of the Sixth Circuit’s injunction, the majority opined that employers stood to incur billions of dollars in compliance costs and the ETS would cause thousands of workers to quit their jobs. The Court found that the ETS operated outside of OSHA’s authority by regulating public health more broadly rather than within its authority, which is limited to occupational hazards. The Court found that, although mandatory vaccination requirement would likely save lives and prevent hospitalizations, it was not the Court's role to weigh such trade-offs, which instead, was a responsibility better left to the legislative branch.

Although the Supreme Court’s ruling might settle the question of whether a federal mandate will be imposed on the private sector, at least through agency rulemaking, in Maine, the public sector will be keeping a close eye on a meeting of the Board of Occupational Safety & Health (BOSH) scheduled for January 18, 2022. BOSH, which has jurisdiction over Maine public sector employers, had intended this meeting to adopt an emergency rule replicating the ETS rule. The question will be whether BOSH has any intention – or authority – to move forward with a state-based rule in the absence of the federal mandate.

The Court’s decision to uphold the vaccination mandate imposed by the Centers for Medicare and Medicaid Services (CMS) did not come as a big surprise given the trend of lower court decisions on the subject. While in states like Maine this ruling has no practical impact because a state mandate has already been imposed and upheld, in many other states the ruling lifts injunctions that had blocked the federal mandate from applying. New Hampshire is one such state. Nationwide employers in the healthcare sector are now mandated to impose vaccination mandates on all their workers, regardless of location. The general guidance provided by CMS should be followed by all subject to the rule. That guidance, dated December 28, 2021, sets certain compliance thresholds to be achieved within 30 and 60 days, with 100 percent vaccination compliance required within 90 days of that date. It is unclear whether CMS will allow additional time to covered employers in the states affected by the Court’s decision.

Where does all this leave employers below the 100-worker threshold and those which would have been obligated to implement the ETS had the Court upheld the Sixth Circuit’s stay?

Private sector employers have the flexibility to develop and implement their own strategies or do nothing, subject of course to existing state and local laws which were unaffected by the Court’s ruling on the ETS. To date, either through executive orders or legislative action, 20 states have enacted prohibitions on the imposition by businesses and localities of proof-of-vaccination requirements or so-called vaccine passport programs. By contrast, another 5 states have taken action to facilitate the creation of digital vaccination status applications or have passed laws exempting fully vaccinated individuals from some COVID-19 restrictions if they can provide proof of vaccination. For now, the only common denominator is this -- because OSHA cannot impose its ETS on employers any policy decisions with respect to workplace pandemic prevention are being left to individual states.

Private sector employers in Maine, New Hampshire and Massachusetts remain subject to whatever state and local regulations are in place concerning workplace pandemic prevention requirements. Beyond those, employers have a myriad of choices in crafting how to supplement those requirements if at all. Employers that wish to implement vaccination incentives for their employees, those who want to set up a periodic testing program, and even those who wish to implement some form of mandatory vaccination requirement, are in a position to develop and implement policies and procedures scaled to their operations.

Preti's Labor and Employment team can guide employers through these options and help determine which workplace pandemic prevention strategies achieves the best balance between worker safety, your operational demands and legal compliance.

Treasury Department Expands ARPA Funding Eligibility for Broadband Development

Wednesday, January 12, 2022

On January 6, 2022, the Treasury Department issued its final rule on the American Rescue Plan Act State and Local Fiscal Recovery Funds (“SLFRF”) program and it contained good news for municipalities considering broadband infrastructure investments. In response to concerns raised by broadband advocates and recipients, Treasury has significantly broadened the scope of eligible broadband infrastructure projects, granted recipients more discretion in the use of funds received, and acknowledged the importance of affordable broadband access.

Under the interim final rule issued by Treasury in May 2021, recipients could only use SLFRF funds for broadband infrastructure projects in unserved or underserved areas (those with broadband speeds of less than 25 Mbps download and 3 Mbps upload). Additionally, the interim rule discouraged investment in areas with existing broadband infrastructure projects. Though these requirements were based on reasonable evidence about broadband use and needs, they prevented municipalities from deploying SLFRF funds for many worthy projects. Treasury has loosened many of these restrictions in the final rule.

First and foremost, the final rule permits SLFRF-funded projects in any area with an “identified need” for broadband infrastructure investment. Recipients now have broad discretion to identify areas with need and the final rule indicates that areas without a wireline connection reliably delivering 100/20 Mbps speeds or without affordable or stable broadband service are considered to have an identified need. The increased minimum speed will allow municipalities to utilize SLFRF funds in much broader areas and to strengthen broadband infrastructure in those that already met the speed standard of the interim final rule. The updated speed standard in the final rule exceed those employed by ConnectME and other grant makers and may allow municipalities to further leverage SLFRF and other state funding for their broadband infrastructure projects.

Additionally, the final rule acknowledges that, for many people, affordability, rather than lack of service, is the primary obstacle to broadband access. In addition to making lack of affordable broadband service an identified need, Treasury will now require recipients to ensure that any service provider using SLFRF-funded broadband infrastructure offers affordable service and provides at least one low-cost option without data caps and with speeds that enable modern broadband usage.

Lastly, the Final Rule has loosened the prohibition on using SLFRF funds in areas that are already receiving federal funding for broadband infrastructure projects. Treasury will now permit recipients to use SLFRF funds in existing project areas, provided the SLFRF funds are addressing an identified need that will not be remedied by the other project.

Together, these changes have opened the door for municipal broadband infrastructure investments and development. Please contact us if you would like any additional information or guidance on the Final Rule’s impact on your planned or proposed project.