The Benton Institute for Broadband & Society has asked the question that I think many of us have pondered – are all of these change to BEAD legal? They recently posted an article from Tejas N. Narechania is a Professor of Law at the University of California, Berkeley, School of Law on the topic. He starts with the setup…

In 2021, President Biden signed the Infrastructure Investment and Jobs Act (IIJA), which allocated over $42 billion to the new Broadband Equity, Access, and Deployment (BEAD) Program to ensure high-speed Internet access for every American.[1] That money was allocated across 56 states and territories responsible for selecting the providers that will build connectivity to unserved and underserved locations.

After President Trump’s second inauguration, his administration implemented several changes to the BEAD Program. Among them are two new conditions on state funding.

First, the National Telecommunications and Information Administration (NTIA), announced that it would prohibit states from regulating broadband rates or imposing network neutrality rules on broadband providers,[2] even after several federal courts held that such rules fell within the states’ traditional, lawful powers. NTIA has since asked states to sign amended “Notices of Award”—documents governing BEAD grants—that purport to implement this prohibition statewide, even in locations not subsidized by BEAD (e.g., places with existing service).

Second, Executive Order No. 14,365 directs the Secretary of Commerce to identify “onerous” state laws regulating AI systems,[3] singling out Colorado’s prohibition against biased AI systems used for discriminatory purposes as an example.[4] The Executive Order then declares that any state with an onerous law will be deemed ineligible for certain “nondeployment” BEAD funds. As of April 2026, the Commerce Secretary has yet to release this “naughty list” of AI laws.

Both conditions are unlawful.

The author goes on to explain that both conditions are inconsistent with the text of the IIJA and other statutory provisions, there’s no federal power to preempt state AI and broadband regulation and federal authorities doesn’t have the power to regulate and to preempt state regulation. The explanations in the article are more complete and succinctly explained. It’s worth checking out the full article.

So many change with BEAD over the years, the Benton Institute for Broadband & Society (or John Windhausen, Jr via Benton) has some suggestions…

Congress created the Broadband Equity, Access, and Deployment (BEAD) Program in 2021 “to bridge the digital divide.”[1] The National Telecommunications and Information Administration’s own program materials say BEAD “aims to connect every American to high-speed internet” through infrastructure partnerships.[2] That is an important mission, and one that still enjoys broad support.

Operating the program, however, has been challenging, due to rule changes, difficulties identifying unserved and underserved locations, and questions about the capabilities of competing technologies.

I am abbreviating his recommendations…

1. Keep BEAD Focused on Broadband.

The Biden-era BEAD framework attached a series of requirements that were not clearly rooted in the statute, such as labor and climate control measures.[5]  NTIA’s 2025 Restructuring Policy Notice eliminated these “extralegal labor, employment, and workforce development requirements”.[6]

But the Trump Administration risks repeating the same mistake in a different form.

2. Provide LEO Satellite Support for Broadband Adoption, Not Deployment.

Under NTIA’s “Benefit of the Bargain” bidding program, states awarded over 20 percent of “deployment” funding to low-earth orbiting (LEO) satellite services.[8]  This is illogical; the satellite companies are already deploying thousands of satellites without government funding.  Providing these companies with “deployment” funding will not yield any additional satellites and could be considered a waste of funds.

On the other hand, providing subsidies to cover the costs of satellite dish equipment and installation will help consumers afford to subscribe, which IS one of the BEAD program’s goals. This makes it a broadband adoption issue, not a deployment issue. States should be allowed to make non-deployment funding available to LEO satellite companies as customers sign up, rather than handing the LEO satellite providers a large up-front check.

3. Do Not Make Sustainability Harder Than It Already Is.

After the “Benefit of the Bargain” competitive bidding process was completed, NTIA adopted a relatively new rule regarding future federal support. In an October 2025 speech at the Hudson Institute, Assistant Secretary Arielle Roth said NTIA would require broadband awardees to certify that they would not “require or take additional federal subsidies—including operational subsidies—to complete or operate their BEAD projects.”[9] That policy was later codified into Term 51 of the November 2025 BEAD General Terms and Conditions.  NTIA justified the rule on default-prevention grounds, arguing that reliance on speculative future funding increases the risk that a project will fail.[10]

The concern is legitimate, but the flat prohibition on additional federal funding may overshoot.

4. Allow States to Use Non-Deployment Funds to Drive Adoption and Long-Term Viability.

Finally, if NTIA wants BEAD-funded networks to last, it should pay closer attention to adoption. NTIA’s own BroadbandUSA homepage describes BEAD as a program supporting broadband “deployment, mapping, and adoption,” not deployment alone. In the February 2026 listening sessions on the use of BEAD savings, the Benton Institute for Broadband & Society reported that broadband adoption was the dominant theme, with speakers repeatedly urging NTIA to support affordability, devices, and digital skills alongside network construction.[11]

Roll Call reports...

The Trump administration has asserted for months that its “bargain” version of the federal $42.5 billion grant program to expand access to broadband internet would save taxpayers money. That made states and their representatives in Congress nervous that funds left over after deployment proposals would be clawed back.

Under pressure from senators at an appropriations hearing, Commerce Secretary Howard Lutnick last month sought to calm fears when he said that so-called “non-deployment” funds under the Broadband Equity, Access and Deployment, or BEAD, program would not be rescinded.

But with no guidance so far from the department’s National Telecommunications and Information Administration, which was expected but delayed this week, lawmakers and others are pushing to have their voice heard on exactly how states will be able to use the $21 billion pot of money.

Concern over the unallocated funds has been bipartisan. Senators on both sides of the aisle pressed Lutnick at the Commerce-Justice-Science Appropriations Subcommittee hearing — which was overshadowed by questions on his interactions with deceased sex offender Jeffrey Epstein — mentioning connectivity needs in their states that could be filled by the funds in areas such as remote health care and farming.

The National Telecommunications and Information Administration (NTIA) reports…

Statement by Assistant Secretary of Commerce for Communications and Information and NTIA Administrator Arielle Roth regarding the use of the $21 billion savings achieved in the BEAD program through the Trump Administration’s Benefit of the Bargain reforms:

“For the past few weeks, NTIA has received an extraordinary level of interest and feedback concerning our approach to using the $21 billion in savings achieved through the Benefit of the Bargain reforms to the BEAD program.

“We appreciate the voluminous and passionate responses to our call for input. Across three listening sessions, we had more than 1,700 attendees and 175 speakers participate. We also received 188 written comments from industry, state officials, and broadband advocates.

“Participants and commenters have raised interesting ideas, including funding permitting improvements and workforce-related training, enhancing public safety communications, and using some of the funding to ‘clean up’ any remaining unserved locations.

“Next week, state officials from around the country will travel to Washington, D.C., to participate in our State Broadband Leaders Network Winter Summit. This conference presents a unique opportunity to engage directly with the states on how some of these ideas could be implemented to ensure we continue maximizing the value of the BEAD program for the American people.

“While our guidance was expected by next week, we are taking additional time to review the comments and finalize our approach to ensure these funds are spent as efficiently and responsibly as possible. American taxpayers work hard for their money and deserve nothing less from this Administration.”

To read about the feedback we’ve received from the public and industry, and common themes that have emerged from those discussions, click here.