Wicker Urges Need to Restore NTIA Protections in Infrastructure Bill

Wicker amendment would provide critical safeguards for stakeholders and the general public in federal rulemaking process

August 4, 2021

WASHINGTON – U.S. Sen. Roger Wicker, R-Miss., ranking member of the Senate Committee on Commerce, Science, and Transportation, today delivered remarks on the Senate floor on his amendment (#2146) that would restore the requirements of the Administrative Procedure Act (APA) to provide transparency and necessary protections to National Telecommunications and Information Administration’s (NTIA) regulatory actions. The infrastructure legislation provides the NTIA with an exemption from the requirements of the APA for the implementation and administration of the broadband infrastructure grants. The APA is a federal statute that governs the process by which Federal agencies develop rules and regulations. It provides important protections, including public notice and comment periods, established timelines, and formal procedures that must be followed.

Click here to watch the floor speech.

Excerpt from Ranking Member Wicker’s remarks, as delivered, below:

Mr. President, I offer today what should be considered a friendly amendment to the broadband section of this 

Mr. President, I offer today what should be considered a friendly amendment to the broadband section of this infrastructure bill.

Why is it a friendly amendment? Because by using the Administrative Procedures Act, which my amendment would provide, it would save billions of dollars in broadband buildout funds. It would provide for consumer input, stakeholder input, local and state government input, into NTIA, the agency that would be in charge of this broadband buildout. And also, because it will not delay the broadband buildout in any way.

Now, as written today, the broadband section waives the administrative procedures.

The Wicker amendment would simply strike that waiver, and make the Administrative Procedure Act apply to the broadband section, as it applies to so many big programs that are enacted.

If we pass this amendment, there will be the timeline. Let’s assume the President does not get around to signing this bill until October the first. I would expect the President would sign it earlier than that, but let’s assume that he does that.

There will be 30 days of notice, 30 days of public comment after the notice is published, a review of those comments, which could take 30 to 40 days. At that point, the regulations are published and after 30 days they go into effect.

So, by my calculations, assuming the President is very, very late in signing the bill, the Act and the regulations under the Administrative Procedures Act would be done by February 7th.

Now what we all know, and everyone in this chamber knows, is that we have to wait on the FCC maps, and they will not be ready until the earliest by spring of next year – and that is very, very optimistic.

So, we have time to do it right, to get public input, to have people who have already experienced this come to the agency and say, “You might want to do it this way” or “you might want to avoid doing it that way because here is our experience.”

We did this one time before, and it was only $4.7 billion – this is $42 billion. That was the BTOP program, which was enacted in 2009. We skipped this, we gave it to an agency, which is going to happen this time – the NTIA, a staff of only 157 people – to monitor, back then $4.7 billion, this time $42 billion.

Here is what we learned about the BTOP program, which is an awful lot like this one. When Congress asked NTIA to administer this, the results were deeply troubling.

Let me quote the Inspector General. Let me quote the Stanford Institute of Economic Policy and the Phoenix Center. Their own Inspector General found that the agency faced significant challenges in managing the size and complexity of the program. It is a program a tenth the size of what we are talking about today.

The Stanford Institute said NTIA’s mechanism for selecting projects was “incoherent.” Had they adopted more reasonable frameworks, many more households could have been connected with the same money, or the same number of connections could have been realized for a fraction of the cost because they did not do what I am advocating for today, Mr. President.

The Phoenix Center, an independent think tank, said they found “no positive effect on home broadband adoption” from the BTOP program.

Mr. President and my fellow colleagues, years from now, when someone realizes we have wasted billions of dollars on this buildout, I would want and I think my colleagues would want to say, “Well I voted yes on the Wicker amendment to take the extra 130, 140 days to hear what went right and what went wrong in the past and to make sure we get it right.”

No Senator has worked harder than I have on broadband buildout. I want this program to succeed. This is a way to make sure we spend the money correctly, to make sure we do it right.

I ask unanimous consent at this point, Mr. President, to put into the record an article dated August 3rd, just yesterday, from The National Journal. It says, “How $65 billion for Broadband Infrastructure Could Fall Short.” I ask that it be entered into the record at this point.

Mr. President, I do not want this program to fall short. I want it to succeed. This amendment gives us a chance to get the money right, to take the extra time that we are going to have to take anyway to get the maps right.

It is a good government amendment, a friendly amendment, and I urge bipartisan adoption of it.