A03054
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2071
Session of
2021
INTRODUCED BY CAUSER, SNYDER, OWLETT AND MARSHALL,
NOVEMBER 9, 2021
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, NOVEMBER 9, 2021
AN ACT
Amending Title 64 (Public Authorities and Quasi-Public
Corporations) of the Pennsylvania Consolidated Statutes,
establishing the Pennsylvania Broadband Development Authority
to provide broadband Internet access to unserved and
underserved residents; and providing for powers and duties of
the authority and for grant awards.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 64 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 61
PENNSYLVANIA BROADBAND DEVELOPMENT AUTHORITY
Subchapter
A. General Provisions
B. Structure and Governance
C. Powers and Duties
SUBCHAPTER A
GENERAL PROVISIONS
Sec.
6101. Scope of chapter.
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6102. Definitions.
§ 6101. Scope of chapter.
This chapter relates to the development and expansion of
broadband services to unserved and underserved areas of this
Commonwealth.
§ 6102. Definitions.
The following words and phrase as used in this chapter shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Applicant." A nongovernmental An entity that submits an
application for a grant under section 6124 (relating to grant
applications and process) . , including, but not limited to, a
cooperative, nonprofit organization, public-private partnership,
private company, public or private utility, public utility
district or local government.
"Authority." The Pennsylvania Broadband Development
Authority established under section 6111(a) (relating to
authority).
"Board." The board of directors of the Pennsylvania
Broadband Development Authority established under section 6112
(relating to board).
"Community anchor institution." An entity, including any
school, library, health clinic, health center, hospital or other
medical provider, public safety entity, institution of higher
education, public housing organization or community support
organization, that facilitates greater use of broadband service
by vulnerable populations, including low-income individuals,
unemployed individuals and aged individuals, that lack access to
gigabit-level broadband service.
"Department." The Department of Community and Economic
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Development.
"Eligible cost." The cost of all labor, materials, machinery
and equipment, land, property, rights and easements, plans and
specifications, surveys or estimates of costs and revenues,
prefeasibility studies, engineering and legal services and all
other expenses necessary or incident to the acquisition,
construction, improvement, expansion, extension, repair or
rehabilitation of all or part of a project.
"High-speed broadband service." Wireless, wireline or fixed
wireless technology having a latency sufficient to support real-
time, interactive applications and the capacity to reliably and
consistently transmit data from or to the Internet at:
(1) minimum speeds of at least 100 megabits per second
downstream and 20 megabits per second upstream; or
(2) minimum speeds adopted by the Federal Communications
Commission , whichever is greater. ; or
(3) minimum speeds otherwise required to comply with
funding opportunities from the Federal Government, whichever
is greater.
"Overbuild." The deployment of high-speed broadband service
infrastructure in an area that is not unserved or underserved .
"Program." The grant program established under section
6123(a) (relating to grant awards generally).
"Statewide broadband plan." The Statewide broadband plan
developed under section 6122(g) (relating to specific powers and
duties).
"Unserved area." A project area without access to wireline
or fixed wireless broadband service at the greater of:
(1) minimum speeds of at least 100 megabits per second
downstream and 20 megabits per second upstream; or
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(2) minimum speeds adopted by the Federal Communications
Commission.
"Wireless infrastructure program manager." An entity
currently contracted with to do any of the following:
(1) Analyze, market, manage the occupancy of or handle
revenues relating to Commonwealth-owned assets or neutral
host systems for revenue-generating purposes.
(2) Construct, retrofit, upgrade or, through agreement
with other providers, facilitate the construction of new
telecommunications equipment on Commonwealth-owned land,
facilities or rights-of-way.
(3) Enter into site-occupancy agreements for assets and
telecommunications equipment with service providers that will
facilitate the deployment of broadband services to consumers.
"Underserved area." A project area that is not an unserved
location and lacks access to reliable broadband service offered
with a speed of not less than 100 megabits per second for
downloads and 20 megabits per second for uploads and a latency
sufficient to support real-time, interactive applications.
"Unserved area." A project area that has no access to
broadband service or lacks access to reliable broadband service
with a speed of not less than 25 megabits per second for
downloads and three megabits per second for uploads and a
latency sufficient to support real-time, interactive
applications.
SUBCHAPTER B
STRUCTURE AND GOVERNANCE
Sec.
6111. Authority.
6112. Board.
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6113. Audits.
6114. Annual report.
6115. Trust accounts.
6116. Use of money of authority.
§ 6111. Authority.
(a) Establishment.--The Pennsylvania Broadband Development
Authority is established as an independent authority. The
authority shall be an instrumentality of the Commonwealth and a
body corporate and politic, with corporate succession. The
exercise by the authority of the powers conferred on the
authority by this chapter shall be deemed and held to be a
public and essential government function.
(b) Governance.--The authority shall be governed by a board
of directors as provided in section 6112 (relating to board).
The powers of the authority shall be exercised by the board.
(c) Fiscal year.--The fiscal year of the authority shall be
the same as the fiscal year of the Commonwealth.
(d) Dissolution.--Upon dissolution of the authority, all
property, money and assets of the authority shall be vested in
the Commonwealth. The authority shall dissolve upon the elapse
of six years from the effective date of this section . , unless
otherwise extended by the General Assembly. No later than six
months prior to the dissolution of the authority under this
subsection, the authority shall submit a report to the General
Assembly. The report shall include a status of all projects
under this chapter, a recommendation of whether the authority
needs additional time to accomplish the purposes of this chapter
and the anticipated timeline for completion of the authority's
work.
(e) Procurement.--The authority shall be considered an
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independent agency for purposes of 62 Pa.C.S. Pt. I (relating to
Commonwealth Procurement Code).
(f) Applicability.--The following acts shall apply to the
authority and the board:
(1) The act of July 19, 1957 (P.L.1017, No.451), known
as the State Adverse Interest Act.
(2) The act of February 14, 2008 (P.L.6, No.3), known as
the Right-to-Know Law.
(3) The provisions of 65 Pa.C.S. Chs. 7 (relating to
open meetings) and 11 (relating to ethics standards and
financial disclosure).
§ 6112. Board.
(a) Composition.--
(1) The board of directors of the authority shall
consist of members selected as follows:
(i) The Secretary of Agriculture or a designee.
(ii) The Secretary of Community and Economic
Development or a designee.
(iii) The Secretary of Education or a designee.
(iv) The chair executive director of the Center for
Rural Pennsylvania or a designee.
(v) The chair of the Pennsylvania Public Utility
Commission or a designee.
(vi) The executive director of the Governor's Office
of Broadband Initiatives Secretary of General Services or
a designee.
(vii) One individual appointed by the Governor The
Secretary of the Budget or a designee .
(viii) One individual appointed by the President pro
tempore of the Senate.
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(ix) One individual appointed by the Minority Leader
of the Senate.
(x) One individual appointed by the Speaker of the
House of Representatives.
(xi) One individual appointed by the Minority Leader
of the House of Representatives.
(2) A member appointed under paragraph (1)(viii), (ix),
(x) or (xi) may shall be a member or employee of the General
Assembly.
(b) Organization.--The Governor shall select a member of the
board to serve as chairperson. The members shall select from
among themselves such officers as they deem necessary.
(c) Quorum and meetings.--
(1) Five Six members of the board shall constitute a
quorum. The following shall apply:
(i) The consent of no fewer than five six members of
the board, with four of the consenting members being
appointed as specified under subsection (a)(1)(vii),
(viii), (ix), (x) or (xi), shall be necessary to take
action on or and make a commitment on behalf of the
authority for any of the following:
(A) Disbursing, encumbering, obligating or
otherwise committing funds of any nature.
(B) Adopting a Statewide broadband plan.
(C) A legal binding or commitment of the
authority.
(D) Adopting guidelines, issuing directives,
declaring policy goals or publishing documents or
statements on the authority's behalf.
(E) Scheduling meetings of the board.
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(F) Extending a moratorium on a wireless tower
sitting on property owned or controlled by the
Department of Conservation and Natural Resources.
During the period when the authority is in existence,
a current moratorium or effective moratorium shall
not be valid on or after the effective date of this
section unless explicitly approved by the authority
in accordance with this chapter. Any revenues derived
by the Commonwealth or a State agency from a contract
for a wireless tower sitting shall be used for the
program or transferred by the State Treasurer into
the General Fund upon the dissolution of the
authority under section 6111(d) (relating to
authority).
(G) Authorizing an agreement between the
Commonwealth or a Commonwealth agency or department
with a wireless infrastructure program manager. A
contract affected by the provisions of this clause
shall be unenforceable after the effective date of
this section and construed based on a change in
applicable State law. under section 6121(1), (2),
(3), (4), (5) and (6) (relating to corporate powers
and duties in general).
(ii) A majority of the board shall be necessary to
take any other action not specified under subparagraph
(i) on behalf of the authority.
(2) The board shall meet to conduct official business no
less than once a month a quarterly basis .
(d) Designees.--A public officer member of the board may
designate an officer or employee of the Commonwealth to
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represent the public officer member at meetings of the board.
Each designee may lawfully vote and otherwise act on behalf of
the public officer member. The designation shall be in writing
delivered to the authority and shall continue in effect until
revoked or amended in writing delivered to the authority.
(e) Services.--
(1) The department shall provide administrative services
and staff, including legal counsel staff, to the authority
and the board. The authority shall reimburse the department
for the cost of providing the administrative services and
staff under this paragraph.
(2) The authority may shall enter into an agreement with
the department specifying the rights and obligations that the
authority and department have in administering their duties
required under this chapter to implement the purposes of this
chapter.
(f) Compensation.--The members of the board shall not be
entitled to compensation for service. The members of the board
shall be entitled to reimbursement for all necessary and
reasonable expenses incurred in connection with the performance
of their duties.
(g) Fiduciary relationship.--The members of the board and
the professional personnel of the board shall stand in a
fiduciary relationship with the Commonwealth and the authority
as to the money and investments of the authority.
§ 6113. Audits.
The accounts and books of the authority, including its
receipts, disbursements, contracts, mortgages, investments and
other matters relating to its finances, operations and affairs,
shall be examined and audited by the Auditor General.
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§ 6114. Annual report.
The board shall provide the Governor and the General Assembly
with an annual report by December March 31 of each year
detailing all high-speed infrastructure projects funded under
section 6123 (relating to grant awards generally). The annual
report shall be published and maintained on the authority's
publicly accessible Internet website and may be submitted to the
Governor and the General Assembly by electronic mail.
§ 6115. Trust accounts.
The authority may establish trust accounts for the deposit of
money available to the authority for the purposes of this
chapter.
§ 6116. Use of money of authority.
(a) Use.--The board shall use the money available to the
authority to fund the program as necessary.
(b) Administrative expenses.--The authority may shall use
the money available to the authority to pay the administrative
expenses of the department and the authority incurred under this
chapter.
SUBCHAPTER C
POWERS AND DUTIES
Sec.
6121. Corporate powers and duties in general.
6122. Specific powers and duties.
6123. Grant awards generally.
6124. Grant applications and process.
§ 6121. Corporate powers and duties in general.
The authority shall have and may exercise all powers
necessary or appropriate to carry out and effectuate disbursal
as the fiscal agent for grants under this chapter and shall
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receive and review grant applications, award grants and develop
a Statewide broadband plan under section 6122(g) (relating to
specific powers and duties). the authority's purposes under this
chapter, including the following:
(1) Adopt bylaws, if necessary.
(2) Make and execute contracts, grants and other
instruments.
(3) Apply for and receive money from any source
consistent with the purposes of this chapter, including
letters of intent and proposals under section 6122(f)
(relating to specific powers and duties).
(4) Establish priorities for and allocate and disburse
money received consistent with the purposes of this chapter.
(5) Establish subcommittees composed of members of the
board or nonmembers of the board to consult with and advise
the authority.
(6) Adopt a Statewide broadband plan.
(7) Perform other operational activities necessary or
appropriate to further the purposes of this chapter.
§ 6122. Specific powers and duties.
(a) Single point of contact.--The authority shall aim to
serve as a single point of contact for entities wishing to
engage in broadband development and deployment in this
Commonwealth, including coordination of public and private
efforts to avoid overbuilding of capacity in any given
geographic area and to efficiently utilize existing
infrastructure.
(b) Funding resource base.--In addition to providing the
financial assistance authorized by this chapter to support
broadband deployment, the authority shall identify and promote
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opportunities to access Federal funding, nongovernmental
organization funding and other funding opportunities to
eliminate duplicative funding requests and synthesize multiple-
provider joint efforts in any given geographic area.
(c) Cooperation of other Commonwealth entities.--All
Commonwealth agencies and departments charged with specific
aspects of broadband development and deployment shall
communicate and cooperate with the authority so that the
authority can maintain a centralized database of all broadband
deployment activities occurring within this Commonwealth to
avoid duplication of efforts as well as provide consultation on
their respective areas of expertise.
(d) Educational materials.--The authority may develop
educational materials and engage in public information campaigns
to encourage adoption of broadband where currently available and
increase consumer understanding of the need for broadband access
for all Commonwealth residents.
(e) Municipal guidance best practices .--The authority may
develop guidelines best practices for municipalities to assist
in streamlining zoning processes in order to expedite broadband
deployment.
(f) Letters of intent and proposals.--The authority shall be
responsible for drafting and filing all letters of intent,
initial and final proposals or other correspondence as required
to maximize access to the Broadband Equity, Access, and
Deployment Program as administered by the United States
Department of Commerce.
(g) Broadband plan.-- The authority shall develop an
enforceable a Statewide broadband plan in collaboration with
local and regional entities to advance broadband buildout ,
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including equitable access and digital literacy components, for
the benefit of residents of this Commonwealth and as necessary
to facilitate access of nongovernmental entities applicants to
funding opportunities from the Federal Government. The Statewide
broadband plan shall also incorporate opportunities to utilize
Commonwealth assets to the extent practicable. The Statewide
broadband plan shall inure as expeditiously as possible and no
later than one year from the effective date of this section. A
political subdivision shall have the opportunity to submit a
localized broadband plan to the authority and comment upon an
initial Statewide broadband plan proposal of the authority.
§ 6123. Grant awards generally.
(a) Authorization.--The authority shall award grants under a
program one or more programs established by the authority, and
the amount of the grants shall be limited to the money available
to the authority. The authority shall aim to disburse all money
available before dissolution under section 6111(d) (relating to
authority).
(b) Eligible entities.-- A nongovernmental entity An
applicant with the technical, managerial and financial expertise
to design, build and operate high-speed broadband service
infrastructure within this Commonwealth shall be eligible to
receive a grant from the authority for the deployment of the
high-speed broadband service infrastructure. In order to qualify
for a grant from the authority, the nongovernmental entity
applicant shall commit to investing a minimum of 25% amount of
the entity's private capital to finance a proposed high-speed
broadband service infrastructure project as determined by the
authority in accordance with Federal law and guidance .
(c) Other funding sources.--A Federal, State or local
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government grant, loan or subsidy received by a nongovernmental
entity an applicant to finance a proposed high-speed broadband
service infrastructure project shall not be counted toward the
private capital investment requirement under subsection (b) . A
nongovernmental entity unless otherwise determined by the
authority. An applicant may use a Federal, State or local
government grant, loan or subsidy to finance a proposed high-
speed broadband service infrastructure project under subsection
(b) if the entity satisfies the private capital investment
requirement under subsection (b).
(d) Ineligible projects.--Proposed projects that will result
in overbuild or are to be managed or operated by a Federal , or
State or local government entity shall be ineligible to receive
a grant from the authority under this section.
§ 6124. Grant applications and process.
(a) Application period.--The authority shall establish an
annual application period during which applications for grants
under section 6123 (relating to g rant awards generally) may be
submitted to the authority. The annual application period under
this subsection shall be for a period of no less than 90 60 days
and no longer than 150 120 days.
(b) Form and contents.--An application for a grant under
section 6123 shall be submitted to the authority and shall
include all of the following information:
(1) Evidence demonstrating the applicant's experience
and ability in building, operating and managing high-speed
broadband network service or utility service serving
households and businesses.
(2) A description of the proposed high-speed broadband
service infrastructure project area, including a list of
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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 shall describe the portions of the census block
that are already served by the provider and the portions that
constitute an unserved area.
(3) A certification that none of the grant funds for the
proposed high-speed broadband service infrastructure 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 the submission of the application and
acknowledgment that grant funds utilized for overbuilding may
be subject to refund or clawback by the authority and the
Auditor General, regardless of the dissolution of the
authority under section 6111(d) (relating to authority).
Grant funds that are subject to repayment shall be made
available for the Unserved High-Speed Broadband Funding
Program.
(4) A description of the high-speed broadband service
infrastructure that is proposed to be deployed, including
facilities, equipment and network capabilities, minimum speed
thresholds and a timeline for deployment.
(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 high-speed broadband
service infrastructure project and the proposed completion
date of the project.
(7) The amount of private capital pledged to finance the
proposed high-speed broadband service infrastructure project
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and a certification that no portion of the private capital
pledged is derived from a Federal, State or local government
grant, loan or subsidy program.
(8) Evidence demonstrating the economic and commercial
feasibility of the proposed high-speed broadband service
infrastructure project.
(9) A list of each Federal, State or local government
authorization, permit or other required approval to deploy
high-speed broadband service infrastructure and a timetable
for the applicant's acquisition of each authorization, permit
or other required approval.
(10) Any other information required by the authority.
information required by Federal law or guidance or any other
information required by the authority. The authority shall
develop an application form and post and make the application
form available on the authority's publicly accessible
Internet website.
(c) Availability for review.--Within five 10 business days
after the expiration of the application period under subsection
(a), the authority shall make the applications received proposed
unserved or underserved areas and the community anchor
institutions available for review on the authority's publicly
accessible Internet website.
(d) Overbuild challenges.-- Within 45 days of the authority
making the applications available on the authority's publicly
accessible Internet website under subsection (c), a broadband
service provider providing high-speed broadband service to
households and businesses within a proposed high-speed broadband
service infrastructure project area may challenge an application
Before awarding grant funds under section 6123, the authority
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shall ensure a transparent, evidence-based and expeditious
challenge process under which a unit of local government,
nonprofit organization or broadband service provider may
challenge a proposed project on the grounds that awarding a
grant under section 6123 to the applicant will result in an
overbuild. A After resolving each challenge under this
subsection, and not later than 60 days before awarding grant
funds under section 6123, the authority shall provide public
notice of the final classification of each unserved and
underserved location or community anchor institution within the
Commonwealth. A unit of local government, nonprofit organization
or other broadband service provider shall submit a challenge
under this subsection in writing to the authority, and the
challenge shall include all of the following information:
(1) A declaration disputing that the proposed high-speed
broadband service infrastructure project area is unserved or
underserved .
(2) An affidavit from the broadband service provider of
the provider's existing or planned provision of high-speed
broadband service within the proposed high-speed broadband
service infrastructure project area.
(e) Review.--In reviewing an application and any
accompanying challenge under this section, the authority shall
ensure that the grant award under section 6123 is used to deploy
high-speed broadband service infrastructure to unserved or
underserved areas. The authority may not award a grant under
section 6123 to fund deployment of high-speed broadband service
infrastructure for a project area that results in an overbuild.
(f) Criteria.--The authority shall award grants under
section 6123 for proposed high-speed broadband service
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infrastructure projects based upon a scoring system, which shall
be released to the public at least 30 days before the beginning
of the application period under subsection (a). The authority
shall consider all of the following criteria when weighing or
scoring an application for a grant under section 6123:
(1) The size and scope of the unserved or underserved
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) The length of time which the applicant has been
providing high-speed broadband or utility 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 high-speed broadband
service infrastructure project under subsection (b).
(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 grant funding shall be used to
overbuild an area that is already served with high-speed
broadband service.
(8) Other factors which the authority determines to be
reasonable and appropriate for the purposes of this chapter.
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(g) Regulatory obligations.--In awarding grants under
section 6123, except as required under applicable Federal or
State law, the authority shall not consider any additional
regulatory obligations, including 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." except as required under applicable
Federal or State law.
(h) Time for project completion.-- Applicants shall be
afforded a reasonable length of time to complete proposed high-
speed broadband service infrastructure projects selected for
grants under section 6123. Applicants shall deploy the broadband
network and begin providing service to each customer that
desires service not later than four years after the date in
which the applicant receives a grant unless otherwise extended
by the authority as allowed by Federal law and guidance. Grant
funds awarded to an applicant who fails to complete a proposed
high-speed broadband service infrastructure project within a
reasonable length of time four years, unless otherwise extended
by the authority, may be subject to refund or clawback by the
authority and or the Auditor General, regardless of the
dissolution of the authority under section 6111(d). Grant funds
that are subject to repayment shall be made available for the
Unserved High-Speed Broadband Funding Program.
Section 2. This act shall take effect in 60 days.
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