President Joe Biden’s Senate-approved bipartisan infrastructure package will exempt a $42 billion broadband internet program from having to follow federal transparency and accountability laws, restricting public oversight over a major portion of the bill.
The Senate package, which passed in August, the Infrastructure Investment and JOBS Act, contains nearly $65 billion in spending on broadband, including $42.5 billion allocated for a grant program to expand internet access in underserved communities.
The legislation as it is currently crafted would allow the broadband program not to be under the purview of the Freedom of Information Act, or FOIA, and the Privacy Act, which gives anyone in the public the ability to request documents, emails, and relevant information regarding how the program is being managed by the federal government.
The exemption has been made in the interest of reducing red tape and time lags in the dispersion of broadband funds during the coronavirus pandemic, which has skyrocketed the need for high-quality internet.
“The bill’s full exemption from FOIA and the Privacy Act is inexcusable, especially for the massive amounts of taxpayer dollars being spent,” said Aaron Mackey, a senior staff attorney focused on freedom of information issues at the Electronic Frontier Foundation, a nonprofit digital rights group.
“If Congress is going to commit to spending vast sums on updating our infrastructure, it should instill public trust from the beginning by making that spending as transparent as possible,” Mackey said. “This bill does the opposite, establishing secrecy as the default.”
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He added that he was not aware of any past government spending program of this size and scope where FOIA and the Privacy Act did not apply.
The two key transparency and accountability laws are part of the Administrative Procedure Act which governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rule-making in the Federal Register and provides opportunities for the public to comment on notices of proposed rule-making.
The controversial APA exemptions could be removed from the legislation by the House, where it is currently being debated, before it becomes law.
The APA has been exempted from some time-sensitive coronavirus-related bills in the past year in the interest of providing relief to people more quickly.
Independent Sen. Angus King of Maine, who caucuses with the Democrats, said on the Senate floor earlier this year that removing the APA and FOIA exemptions could cause a number of lawsuits that would significantly slow down the execution of the critical broadband provisions of the infrastructure package.
“The burdensome administrative requirements of the APA are not really necessary,” King said, highlighting that states would play the role of providing transparency and accountability in the process.
However, broadband industry insiders say that the lack of safeguards in the legislation could be abused in a partisan fashion.
“They want full power to do whatever the hell they want with the broadband money,” a former top Republican Federal Communications Commission staffer told the Washington Examiner.
“It seems to be a ploy to avoid accountability and circumvent checks and balances so that Biden and the Democrats can give the money to whoever they want,” he added.
The former official, who now represents telecom companies, said that the broadband industry wants the APA and its respective transparency and accountability provisions so that it can fully understand what the federal government is doing and potentially take action against it for any wrongdoing or shady behavior.
He added that since the $42 billion in broadband grants will be administered by the National Telecommunications and Information Administration within the Biden administration’s Department of Commerce, rather than an independent agency like the FCC, it is more likely to be spent in a partisan fashion.
Some liberals have been concerned that the program could result in a slush fund for the telecom industry and not help enough low-income people. The APA requirements could help shed light on this concern as well.
Mackey said the other parts of the bipartisan infrastructure package have carved out limited exemptions from the APA, like limiting FOIA requests for certain provisions due to national security reasons, but the broadband spending doesn’t fall into this category.
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“If they could use a fine scalpel in other parts of the bill, why couldn’t they do so in the broadband parts? It’s very troubling that the language is so broad in how it keeps the public out,” Mackey said.
