NTIA Needed to Run New BEAD Rules Past Congress: GAO
The Congressional Review Act (CRA) doesn't let the Commerce Department unilaterally change BEAD's rules, as it did in its June 6 restructuring policy notice, without running it past Congress, the Government Accountability Office said Wednesday. But that decision may not ultimately change the course and momentum of the program, broadband policy experts said. NTIA didn't comment.
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June's restructuring notice swept away a variety of Biden-era BEAD requirements and provisions covering issues such as net neutrality, low-cost service and climate change (see 2506060052). It also no longer prioritized fiber for broadband deployment projects.
That policy notice meets the CRA's definition of a rule, GAO General Counsel Edda Emmanuelli Perez said in a decision Tuesday. Under the CRA, federal agencies must submit a report on a new rule to both houses of Congress and the Comptroller General before it can take effect, GAO said. Congress then has 60 days to review it, with a disapproval resolution taking away any power of the rule.
The restructuring notice meets all the required elements of a rule, GAO noted: It's an agency statement, it has future effect, and it implements or prescribes a policy.
Consultant Angie Kronenberg said in an email that if NTIA didn't submit the restructuring notice to Congress and the Comptroller General, "there may be a lot of confusion about whether the BOB [Benefit of the Bargain] rounds are legitimate and whether Congressional members that aren't satisfied with the results may want to intervene with a CRA bill."
The GAO decision "seems a little too late," wrote Jade Piros de Carvalho of Per Aspera Advisors. BEAD "is basically done and dusted" under the BOB restructuring notice, she said. If NTIA "overplayed their hand on rule changes without Congressional input, I'm not sure anything can be done about it [at] this point!"
David Bronston, a Phillips Lytle digital infrastructure deployment attorney, said GAO's decision likely isn’t enough on its own to do away with the changes from the June policy notice, but it could provide ammunition to lawmakers or litigants looking to roll them back. “It would take a lot to invalidate the June law,” he said, likely some sort of legislative or judicial action. But there’s currently a widespread “bipartisan desire to get this program going.”
If the changes were invalidated, it would be “a drastic situation” for the states and companies involved with BEAD, Bronston said. Those changes have already sent states “back to the drawing board,” he said. “To go back to where they were before June would be pretty dramatic.” It would be “a rough Christmas of coal for a lot of these state broadband offices if the rule were invalidated legislatively.”
Lawmakers should consider the GAO decision and review the June policy notice, said Benton Institute for Broadband & Society Executive Director Revati Prasad in a statement. The notice “can not take effect without Congressional review,” he said. “By failing to follow the proper process to ensure Congressional oversight, NTIA has again created additional uncertainty and delay for states.” Congress should “review the June 6 changes as soon as they are submitted” and “continue providing meaningful oversight of this critical broadband deployment program.”
While the BOB changes likely aren’t affected, the GAO decision has implications for future updates that the administration wants to make to BEAD, Public Knowledge Senior Vice President Harold Feld said. NTIA is now on notice that it can’t insert provisions into BEAD restricting state AI regulation or net neutrality rules without running them by Congress, Feld said. A majority of Congress won’t adopt a resolution disapproving of a net neutrality rules ban, but Republican lawmakers might not be as amenable to NTIA requiring a repeal of state AI laws, he added.
GAO reports can be “interesting” but don’t have a “binding legal effect,” Cooley’s Robert McDowell said in an email. “Different lawyers can and do have differing legal opinions about most anything, and this is no exception.” He predicted that NTIA “will steam ahead with its reforms to make BEAD more of an 'all of the above' program.” NTIA has worked well with the states, “and the results and public benefits will become even more apparent in 2026,” McDowell added.
Joe Kane, the Information Technology and Innovation Foundation's director of broadband and spectrum policy, agreed that the legal effect of GAO's report is debatable. Its opinion doesn't indicate that the original funding notice “was submitted pursuant to the CRA, and I'm not aware of it having been submitted,” which suggests that the policy notice may not need to be submitted, either, he said.
Even if the GAO is correct, the remedy isn’t clear, Kane said. “It's not obvious who would have standing to enforce the CRA provision, and even if someone did, the outcome might just be to submit the policy notice and have everything continue as it has been.” NTIA and the states also have an incentive not to further delay the release of BEAD funds "by tying up the authorization … in litigation."
GAO seems to offer “a plausible reading” of the CRA, but the practical effect is less clear, said Kristian Stout, innovation policy director at the International Center for Law & Economics. It’s an opinion letter from GAO, “which means we would either need litigation or some new act of Congress, or at least a hearing, to see actual impediments to NTIA pursuing its policy.”