Further Streamlining the BEAD Permitting Process Can Accelerate the Pace of Deployment
Greg Guice | March 10, 2025
On March 5, Commerce Secretary Lutnick announced that he intends to make changes to the Infrastructure Investment and Jobs Act’s (IIJA) Broadband Equity, Access, and Deployment (BEAD) program by taking a more technology-neutral approach and exploring ways to “cut government red tape.” This has the potential to help accelerate deployment, which would be great news. In making these changes, the National Telecommunications and Information Administration (NTIA) should follow the lead of states that have already begun implementing their BEAD programs and promote more efficient, speedy last-mile network connectivity deployments to roughly seven million unserved and underserved locations across the country. One change that would help facilitate faster deployments is reducing the time it takes for internet service providers (ISPs) to obtain infrastructure siting permits. This is a perennial area of tension between federal, state, and local governments, but that does not necessarily need to be the case. There is room for reform that is consistent with the statutory framework and federalism, while offering NTIA a greater role in assisting states as they move forward with their deployment plans.
Expand Use of Categorical Exclusions. Just as Congress found in passing the IIJA that there is a “persistent digital divide,” Congress also acknowledged the persistent challenge that permitting presents to broadband deployment projects. In the IIJA, Congress directed all infrastructure projects, including those under BEAD, to expand use of Categorical Exclusions and streamline environmental impact assessments (135 Stat. 1287). Categorical Exclusions are categories of actions that do not individually or cumulatively have a significant effect on the human environment. Under the BEAD program, NTIA has already adopted 30 new Categorical Exclusions and incorporated 17 other Categorical Exclusions from past Department of Commerce initiatives, including the FirstNet project. Some of the more relevant exclusions relate directly to infrastructure deployment, including:
Construction of buried and aerial telecommunications lines, cables, and related facilities;
Changes to existing transmission lines that involve less than 20 percent pole replacement, or the complete rebuilding of existing distribution lines within the same right-of-way;
Changes or additions to telecommunication sites, substations, switching stations, telecommunications switching or multiplexing centers, buildings, or small structures requiring new physical disturbance or fencing of less than one acre (0.4 hectare);
Rebuilding of power lines or telecommunications cables where road or highway reconstruction requires the applicant to relocate the lines either within or adjacent to the new road or highway easement or right-of-way;
Upgrading of existing electric distribution lines or telecommunications facilities;
New construction in an area with developed land or previously disturbed sites that meets conditions around proposed use;
Siting/construction/operation of microwave/radio communication towers less than 200 feet in height without guy wires on previously disturbed ground;
Adding fiber optic cable to transmission structures or burying fiber optic cable in existing transmission line rights-of-way; and
Siting, construction, and operation of support structures within previously developed land.
The IIJA directed states to act as the Joint Lead Agency with NTIA. As such, the states and territories will be responsible for imposing award conditions and the timely completion of environmental reviews prior to construction. In that capacity, states and territories can encourage potential BEAD subgrantees to consider projects that can take full advantage of the Categorical Exclusions to reduce the time and resources needed to secure approval. This is an important step to consider as the time savings can be significant, particularly in light of changes made to the National Environmental Policy Act under the Federal Responsibility Act of 2023, which among other changes exempted projects from the need to prepare environmental documents if a project fits within a Categorical Exclusion (42 U.S.C. §4366(a)(2)).
NTIA could facilitate greater use of Categorical Exclusions, and possibly expand the list based on Categorical Exclusions to include relevant ones adopted by other federal agencies. As a Joint Lead with the states, this could be an extremely useful way to accelerate deployment.
Greater Utilization of the FAST-41 Process. Another potential avenue to help accelerate the federal permitting process may be greater utilization of the Fixing American’s Surface Transportation Act (FAST) process, known as FAST-41. As part of the IIJA, Congress made permanent the Federal Permitting Improvement Steering Council (Council), which originally began its work in 2015. Its mission is to facilitate deliberate, coordinated, and transparent processes for federal environmental reviews and authorizations necessary for infrastructure projects to get underway. On average, projects that went through the Council’s process in the last four years got a decision nearly 18 months faster than projects that did not go through the FAST-41 process.
The FAST-41 process holds out promise for inclusion of more BEAD deployment projects, particularly those focused on serving tribal lands because the revised statutory language of 42 U.S.C. § 4370m (6)(a)(iii) specifically covers projects sponsored by a Tribe and constructed on Tribal lands.
Beyond that specific opportunity, states with significant federal lands that could be part of a project area may want to avail themselves of this process. While a project typically needs to be estimated to cost more than $200 million, which would exclude many BEAD broadband projects, the statute also allows, at the discretion of the Council, acceptance of projects where authorization from or environmental review by two or more federal agencies is required or where a project will require preparation of an environmental impact assessment (42 U.S.C. § 4370m 6(a)(iv)).
Like with Categorical Exclusions, utilization of the FAST-41 process could be an avenue for a new NTIA, working with states, to accelerate the federal permitting process further, resulting in faster deployments.
Be an Active Partner with the States. While the above recommendations focus on federal permitting, there are equally complicated questions, and opportunities, at the state and local level for streamlining the permitting process. As NTIA has previously noted, some states have undertaken reforms that incentivize their local communities to streamline and be “broadband ready,” but it is by no means a majority of states. Building on those states’ actions, NTIA could leverage its staff as a resource for states looking to streamline their processes. NTIA staff could assist states as they develop plans based on their broader awareness of what permitting reforms have and have not been successful at reducing timelines in those “broadband-ready” states.
NTIA staff helped states in the development of their BEAD programs and performing a best practices clearinghouse function, albeit on a voluntary basis out of respect for federalism, could be a valuable role for NTIA in helping the states accelerate deployment.
NTIA has adapted the BEAD program to address issues raised by stakeholders in the past, including waivers of its original letter of credit requirement; waivers of some of the Build America Buy America Act; and guidance to allow for participation of a broader range of broadband technologies, including low-earth orbit (LEO) satellites and unlicensed fixed wireless (ULFW). Therefore, change in the BEAD program need not be feared, and in areas like permitting, more work can be done which has the potential of delivering the “benefit of the bargain that Congress intended,” as Secretary Lutnick so succinctly described.
