The Native Village of Unalakleet and Native Village of Elim have filed a lawsuit against the U.S. Department of Agriculture over a $70 million grant award that is part of the ReConnect “BEAD” Program, a massive $42.5 billion federal broadband “equity” program to bring high-speed internet to underserved areas in all 50 states, Washington D.C. and territories.
The tribes’ lawsuit says USDA gave away $70 million in funds meant to help connect them to the internet, and then declared the tribes “served” with internet, after not checking with the tribes to see if they were served.
The lawsuit says that the condition of awarding any funds to applicants for grants or loans under the ReConnect Program mandate that an applicant seeking funding to construct broadband service infrastructure over Tribal Lands must obtain a “Tribal Government Resolution of Consent from the Tribal Council of the Tribal Government with jurisdiction over the Tribal Lands at issue.”
In the fourth round of the grant in the fiscal year 2023, the defendant RUS, which administers the grants, granted applications by Interior Telephone Company and Mukluk Telephone Company, in a total of $69,982,995, for a fiber-to-the-premises network. Evidently RUS consulted with Kawarek Inc., a community services organization that is not an authorized Native group in the consultation process outlined in the grant documents.
Despite obtaining $34,993,700 and $34,989,295, respectively, in Round Four of the Reconnect Program to construct broadband service infrastructure in the Nome Census Region of Alaska, Interior and Mukluk lack the ability to begin construction and have not implemented a backhaul plan, which is necessary for connecting subnetworks to the core broadband network, to serve the region, the lawsuit says.
“Even apart from the impropriety of the RUS awards, the lack of performance by Interior and Mukluk will prevent unserved Tribal communities such as Unalakleet and Elim from obtaining access to broadband service. Not only have Interior and Mukluk failed to serve Tribes like Unalakleet and Elim, they have prevented other ReConnect applicants from receiving funding in future rounds to do so after falsely declaring them ‘served’ without checking with the tribes,” as they were legally required to do.
The bottom line, the two tribes are not happy that the USDA apparently broke their own rules by allowing applicants to do work on their lands without their consent.
Once awards are made, the villages are marked as “served” and cannot apply for further funds.
Neither Interior nor Mukluk has yet begun any work on the projects described by their applications, the lawsuit says.
“Tribes including Unalakleet and Elim are injured by the lost benefit of the broadband infrastructure development funds intended for their benefit, and by being designated as ‘served’ when they are not,” the lawsuit continues.
In November, National Telecommunications and Information Administration issued a press release saying the BEAD program “will only succeed if every penny is wisely spent. This includes ensuring that subgrantees have the capacity not just to build and deploy high-speed Internet networks but to operate those networks for years to come, delivering Internet connectivity to areas that for too long have been left behind.”
The news release continued, “Being a good steward of taxpayer dollars also means encouraging robust participation from Internet service providers (ISPs) of all types and sizes. Inclusivity is key: where larger ISPs may have the resources to deploy quickly, smaller providers often have unique expertise in serving some of the hardest-to-reach communities in America. When providers compete for BEAD funding, states and territories can more efficiently spend their allocations and make the most of this historic investment.”
To that end, the NTIA released a programmatic waiver of the Letter of Credit requirement in the BEAD Notice of Funding Opportunity (NOFO).
Under the NOFO, prospective subgrantees must provide an irrevocable standby letter of credit to the Eligible Entity (i.e., the 50 states, five territories, and the District of Columbia) before entering into a subgrantee agreement. The amount of the letter of credit must be no less than 25% of the subaward amount.
“This requirement helps states and territories ensure that potential BEAD applicants have the financial capacity to deliver reliable, affordable high-speed Internet service,” the notice said.
Read the lawsuit at this link:
