PRIOR PRINTER'S NO. 1144
PRINTER'S NO. 1800
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
835
Session of
2019
INTRODUCED BY LANGERHOLC, PITTMAN, STEFANO, ARGALL, MENSCH,
J. WARD, STREET, BREWSTER AND YUDICHAK, AUGUST 26, 2019
SENATOR PHILLPS-HILL, COMMUNICATIONS AND TECHNOLOGY, AS AMENDED,
JUNE 22, 2020
AN ACT
Providing for funding of high-speed broadband service
infrastructure deployment in unserved areas of this
Commonwealth and for powers and duties of the Department of
Community and Economic Development. COMMONWEALTH FINANCING
AUTHORITY; ESTABLISHING THE UNSERVED HIGH-SPEED BROADBAND
FUNDING PROGRAM ACCOUNT; MAKING AN APPROPRIATION; AND MAKING
A RELATED REPEAL.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Unserved
High-Speed Broadband Funding Pilot Program Act.
Section 2. Declaration of policy.
The General Assembly finds and declares as follows:
(1) The purpose of this act is to facilitate the
deployment of high-speed broadband service infrastructure in
unserved areas of this Commonwealth.
(2) The economic and business incentives to deploy high-
speed broadband service infrastructure may be insufficient to
ensure full access to high-speed broadband services in low-
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density, rural locations and other areas of this Commonwealth
where the unit costs of providing service may not provide an
adequate return on investment for private companies.
(3) Access to high-speed broadband services in unserved
areas of this Commonwealth will enhance economic development,
education, health care and emergency services in this
Commonwealth.
(4) Establishing a grant program to facilitate the
deployment of high-speed broadband services infrastructure in
unserved areas will further these objectives through new
private sector investments and is in the policy interest of
this Commonwealth.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Department." The Department of Community and Economic
Development of the Commonwealth.
"ACCOUNT." THE UNSERVED HIGH-SPEED BROADBAND FUNDING PROGRAM
ACCOUNT ESTABLISHED UNDER SECTION 7(C).
"AUTHORITY." THE COMMONWEALTH FINANCING AUTHORITY.
"BOARD." THE BOARD OF DIRECTORS OF THE AUTHORITY.
"High-speed broadband service." Any wireline or fixed
wireless technology having the capacity to transmit data from or
to the Internet at minimum speeds of at least 25 megabits per
second downstream and 3 megabits per second upstream.
"High-speed broadband service infrastructure." The signal
transmission facilities and associated network equipment
proposed to be deployed in a project area used for the provision
of high-speed broadband service.
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"Overbuild." The deployment of high-speed broadband service
infrastructure in an area where high-speed broadband service
infrastructure has been deployed and high-speed broadband
services are offered to the public at the time of submitting a
grant application.
"Program." The Unserved High-Speed Broadband Funding Pilot
Program established under section 4(a).
"Project." The proposed deployment of high-speed broadband
service infrastructure in an unserved area of this Commonwealth
as set forth in an application for grant funding authorized
under this act.
"Unserved area." A project area without access to broadband
service with minimum speeds of at least 25 megabits per second
downstream and 3 megabits per second upstream.
Section 4. Establishment.
(a) Program established.--The Unserved High-Speed Broadband
Funding Pilot Program is established. The department, in
consultation with the Governor's Office of Broadband
Initiatives, AUTHORITY shall administer and act as the fiscal
agent for the program and shall be responsible for receiving and
reviewing all grant applications and awarding grants.
(b) Funding.--Funding for the program shall be no less than
$10,000,000.
Section 5. Grant awards generally.
(a) General rule.--Grant awards shall be at the discretion
of the department, in consultation with the Governor's Office of
Broadband Initiatives, AUTHORITY and shall be limited to amounts
annually allocated to the department AUTHORITY for the program.
(b) Eligible entities.--A nongovernmental entity with the
technical, managerial and financial expertise to design, build
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and operate a high-speed broadband service infrastructure within
this Commonwealth is eligible to receive grant funding for the
deployment of high-speed broadband service infrastructure. The
nongovernmental entity must commit to using a minimum of 25% of
the entity's private capital to finance a proposed project.
(c) Other funding sources.--Federal, State or local
government grants, loans or subsidies received by a
nongovernmental entity to finance a project shall not be counted
toward the capital investment requirement under subsection (b).
In addition to any grant award under the program, a
nongovernmental entity may use funds from a Federal, State or
local government grant or loan program to finance a proposed
project as long as the nongovernmental entity satisfies the
capital investment requirement under subsection (b).
(d) Ineligible projects.--Projects that result in overbuild
or are proposed to be managed or operated by a Federal, State or
local government entity are ineligible to receive grant funding
for the deployment of high-speed broadband service
infrastructure.
Section 6. Application process.
(a) Application period.--The department AUTHORITY shall
establish an annual application period during which applications
for grant funding under the program may be submitted. The annual
application period shall be no fewer than 90 days and no longer
than 150 days.
(b) Form and contents.--An application shall be submitted to
the department on a form prescribed by the department in
consultation with the Governor's Office of Broadband Initiatives
THE AUTHORITY. An application shall include the following
information:
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(1) Evidence demonstrating the applicant's experience
and ability in building, operating and managing high-speed
broadband service infrastructure networks serving households
and businesses.
(2) A description of the project area, including a list
of census blocks covered by the proposed deployment. If a
census block included in an application is currently
partially served by a provider of high-speed broadband
service, the application must describe the portions of the
census block that are already served and which constitute an
unserved area.
(3) A certification that none of the grant money
provided by the program for the proposed project will be used
to extend or deploy high-speed broadband service
infrastructure to areas with access to high-speed broadband
service at the time of submitting a grant application.
(4) A description of the high-speed broadband service
infrastructure that is proposed to be deployed, including
facilities, equipment and network capabilities and minimum
speed thresholds.
(5) The number of households and businesses that would
have new or improved access to high-speed broadband service
as a result of the grant award.
(6) The total cost of the proposed project and the
proposed completion date of the project.
(7) The amount of private capital pledged to finance the
proposed project and a certification that no portion of the
private capital pledged is derived from any Federal, State or
local government grant or loan program.
(8) Evidence demonstrating the economic and commercial
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feasibility of the proposed project.
(9) A list of all government authorizations, permits and
other required approvals to deploy high-speed broadband
service infrastructure and a timetable for the applicant's
acquisition of the approvals.
(10) Any other information required by the department
AUTHORITY.
(c) Publication.--Within five business days following the
close of the application period, the department AUTHORITY shall
make the applications received available for review on the
department's AUTHORITY'S publicly accessible Internet website.
(d) Overbuild challenge.--Within 45 days of the department
AUTHORITY making the applications available on the department's
AUTHORITY'S PUBLICLY ACCESSIBLE Internet website, a broadband
service provider providing high-speed broadband service to
households and businesses within a proposed project area may
challenge an application on the grounds that granting an award
to the applicant will result in an overbuild. The challenge must
be submitted in writing to the department AUTHORITY and include
the following:
(1) A declaration disputing that a proposed project area
is unserved.
(2) An affidavit of the broadband service provider
challenging the application of the provider's existing or
planned provision of high-speed broadband service within the
applicant's proposed project area.
(e) Review.--In reviewing an application and any
accompanying challenge, the department, in consultation with the
Governor's Office of Broadband Initiatives, AUTHORITY shall
conduct a review of the proposed project areas to ensure that
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all grants awarded are used to deploy high-speed broadband
service infrastructure to unserved areas. The department
AUTHORITY may not award a grant to fund deployment of high-speed
broadband service infrastructure for any project area that
results in an overbuild.
(f) Criteria.--The department AUTHORITY shall award grants
for projects based upon a scoring system, which shall be
released to the public at least 30 days prior to the beginning
of the application period. Specific criteria to be considered
when weighing or scoring an application are as follows:
(1) The size and scope of the unserved area to be
deployed.
(2) The experience, technical ability and financial
capability of the applicant to successfully deploy high-speed
broadband service infrastructure and provide high-speed
broadband service.
(3) Length of time which the applicant has been
providing high-speed broadband service.
(4) The extent to which Federal, State or local
government funding support is necessary to deploy high-speed
broadband network infrastructure in an economically feasible
manner in the proposed project area.
(5) The proportion of the private capital pledged by the
applicant to finance the proposed project.
(6) The high-speed broadband service speed thresholds
proposed in the application and the scalability of the high-
speed broadband service infrastructure proposed to be
deployed to provide high-speed broadband service to
households and businesses.
(7) An affidavit that no project grant awards are to be
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used to overbuild an area that is already served with high-
speed broadband service.
(8) Other factors which the department, in consultation
with the Governor's Office of Broadband Initiatives,
AUTHORITY determines to be reasonable and appropriate,
consistent with the purposes of this act.
(g) Limitation.--In awarding grants, except as required
under applicable law, the department AUTHORITY shall not
consider any additional regulatory obligations, including, but
not limited to, open access network requirements or any rate,
service or other obligation beyond the speed requirements set
forth in the definition of "high-speed broadband service" in
section 3.
(h) Time for project completion.--Applicants shall be
afforded a reasonable length of time to complete projects
selected for grant funding approval.
Section 7. Implementation.
(a) Regulations.--The department shall adopt regulations to
implement this act within 180 days of the effective date of this
act. The regulations shall include provision for submission,
review and approval of applications, award of grants and
administration of projects funded under the program, including
provision for reasonable oversight and reporting to ensure that
project grant awards are used as intended.
(A) REQUIREMENTS.--THE FOLLOWING APPLY:
(1) THE REQUIREMENTS FOR THE ADMINISTRATION OF THE
PROGRAM SHALL BE AS FOLLOWS:
(I) AN APPLICATION FOR A GRANT UNDER THIS SECTION
MUST BE RECEIVED BY A DEADLINE ESTABLISHED BY THE
AUTHORITY UNDER SECTION 6.
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(II) THE AUTHORITY SHALL EXECUTE A GRANT AGREEMENT
BETWEEN THE BOARD AND A GRANT RECIPIENT BEFORE THE
PAYMENT OF A GRANT AWARD.
(III) A GRANT RECIPIENT SHALL MAINTAIN FULL AND
ACCURATE RECORDS FOR THE PROJECT.
(IV) A GRANT RECIPIENT SHALL SUBMIT TO THE AUTHORITY
COPIES OF ALL CANCELED CHECKS OR OTHER RECORDS VERIFYING
EXPENDITURES OF GRANT MONEY.
(V) A GRANT RECIPIENT SHALL SUBMIT TO THE AUTHORITY
A FINAL REPORT OF THE PROJECT, INCLUDING ANY INFORMATION
AS REQUIRED BY THE BOARD.
(2) THE AUTHORITY MAY ESTABLISH ADDITIONAL REQUIREMENTS
FOR THE PROGRAM AS THE AUTHORITY DEEMS NECESSARY TO
ADMINISTER THE PROGRAM.
(B) RESTRICTIONS AND LIMITATIONS.--THE FOLLOWING APPLY:
(1) A GRANT RECIPIENT MAY NOT COMMENCE WORK ON A PROJECT
BEFORE RECEIVING AUTHORITY APPROVAL OF THE GRANT UNDER
SECTION 6. COMMENCEMENT OF WORK PRIOR TO RECEIVING AUTHORITY
APPROVAL WILL RESULT IN A PROJECT APPLICATION BEING
INELIGIBLE FOR FUNDING CONSIDERATION.
(2) A GRANT RECIPIENT MAY NOT MAKE A SUBSTANTIAL CHANGE
TO AN APPROVED PROJECT WITHOUT FIRST OBTAINING AUTHORITY
CONSENT IN WRITING.
(3) ANY UNUSED PORTION OF A GRANT AWARD SHALL BE
RETURNED TO THE AUTHORITY.
(4) GRANT MONEY MAY ONLY BE USED FOR NEW PROJECTS
APPROVED BY THE BOARD.
(5) GRANT MONEY MAY NOT BE USED FOR ANY OF THE
FOLLOWING:
(I) PAYING FEES FOR SECURING FINANCING.
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(II) PAYING INTEREST ON BORROWED MONEY.
(III) REFINANCING EXISTING DEBT.
(IV) PAYING FOR LOBBYING SERVICES.
(V) PAYING FINES.
(VI) APPLICATION PREPARATION FEES.
(6) THE AUTHORITY MAY ESTABLISH ADDITIONAL RESTRICTIONS
AND LIMITATIONS AS THE AUTHORITY DEEMS NECESSARY TO
ADMINISTER THE PROGRAM.
(C) ACCOUNT.--THE AUTHORITY SHALL ESTABLISH THE UNSERVED
HIGH-SPEED BROADBAND FUNDING PROGRAM ACCOUNT. THE FOLLOWING
SHALL APPLY:
(1) THE PURPOSE OF THE ACCOUNT IS TO AWARD GRANTS UNDER
THIS ACT.
(2) THE FOLLOWING SHALL BE SOURCES OF FUNDING FOR THE
ACCOUNT:
(I) APPROPRIATIONS, INCLUDING FEDERAL MONEY.
(II) RETURN ON THE MONEY IN THE ACCOUNT.
(3) MONEY IN THE ACCOUNT IS CONTINUOUSLY APPROPRIATED TO
THE ACCOUNT. THIS APPROPRIATION SHALL NOT LAPSE AT THE END OF
A FISCAL YEAR.
(D) GUIDELINES.--WITHIN 180 DAYS OF THE EFFECTIVE DATE OF
THIS SECTION, THE BOARD SHALL ADOPT GUIDELINES TO IMPLEMENT THIS
SECTION. THE GUIDELINES SHALL INCLUDE PROVISIONS FOR SUBMISSION,
REVIEW AND APPROVAL OF APPLICATIONS, AWARD OF GRANTS AND
ADMINISTRATION OF PROJECTS FUNDED UNDER THE PROGRAM, INCLUDING A
PROVISION FOR REASONABLE OVERSIGHT AND REPORTING TO ENSURE THAT
PROJECT GRANT AWARDS ARE USED AS INTENDED.
(b) (E) Prohibition.--The department AUTHORITY may not
provide, by regulation or otherwise, for third-party audit
requirements, liquidated damages provisions or provisions that
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are not reasonably related to the deployment of high-speed
broadband service infrastructure by an applicant in accordance
with the purposes and provisions of this act.
(c) (F) Construction.--Nothing in this section shall be
construed to preclude the department AUTHORITY from considering
an applicant's financial ability to complete a proposed project
or making reasonable requests for information necessary for the
oversight and administration of projects awarded grant funding.
Section 8. Effect on grant recipients.
Nothing in this act is intended to subject a grant recipient,
solely by virtue of receipt of the grant award, to a statutory
or regulatory requirement not provided for under this act if,
absent the receipt of the grant award, the requirement would not
otherwise apply to the grant recipient.
SECTION 9. APPROPRIATION.
THE SUM OF $5,000,000 IS HEREBY APPROPRIATED TO THE AUTHORITY
FROM THE GENERAL FUND FOR THE 2020-2021 FISCAL YEAR FOR PURPOSES
OF THE PROGRAM.
SECTION 10. PROHIBITION AND REPEALS.
(A) PROHIBITION.--THE DEPARTMENT OF REVENUE MAY NOT AWARD A
TAX CREDIT UNDER ARTICLE XVIII-E OF THE ACT OF MARCH 4, 1971
(P.L.6, NO.2), KNOWN AS THE TAX REFORM CODE OF 1971, AFTER JUNE
30, 2020.
(B) REPEALS.--REPEALS ARE AS FOLLOWS:
(1) THE GENERAL ASSEMBLY DECLARES THAT THE REPEAL UNDER
PARAGRAPH (2) IS NECESSARY TO EFFECTUATE THIS ACT.
(2) SECTIONS 1804-E AND 1805-E OF THE ACT OF MARCH 4,
1971 (P.L.6, NO.2), KNOWN AS THE TAX REFORM CODE OF 1971, ARE
REPEALED.
Section 9 11. Effective date.
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This act shall take effect immediately.
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