Regular Session 2021-2022 House Bill 2071 P.N. 2392

PRINTER'S NO. 2392

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 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.

6102. Definitions.

§ 6101. Scope of chapter.

This chapter relates to the development and expansion of

broadband services to unserved 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 entity that submits an

application for a grant under section 6124 (relating to grant

applications and process).

"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).

"Department." The Department of Community and Economic

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 the capacity to reliably and

consistently transmit data from or to the Internet at:

(1) minimum speeds of at least 100 megabits per second

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downstream and 20 megabits per second upstream; or

(2) minimum speeds adopted by the Federal Communications

Commission, whichever is greater.

"Overbuild." The deployment of high-speed broadband service

infrastructure in an area that is not unserved.

"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

(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.

SUBCHAPTER B

STRUCTURE AND GOVERNANCE

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Sec.

6111. Authority.

6112. Board.

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.

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.

(e) Procurement.--The authority shall be considered an

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

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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 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 or a designee.

(vii) One individual appointed by the Governor.

(viii) One individual appointed by the President pro

tempore of the Senate.

(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),

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(x) or (xi) may 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.

(1) Five members of the board shall constitute a quorum.

The following shall apply:

(i) The consent of no fewer than five members of the

board, with four of the consenting members being

appointed under subsection (a)(1)(vii), (viii), (ix), (x)

or (xi), shall be necessary to take action on or 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.

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.

(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

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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.

(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.

(d) Designees.--A public officer member of the board may

designate an officer or employee of the Commonwealth to

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

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for the cost of providing the administrative services and

staff under this paragraph.

(2) The authority may 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.

§ 6114. Annual report.

The board shall provide the Governor and the General Assembly

with an annual report by December 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.

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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 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

receive and review grant applications, award grants and develop

a Statewide broadband plan under section 6122(g) (relating to

specific powers and duties).

§ 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

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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

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.

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.--The authority may develop

guidelines 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

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Department of Commerce.

(g) Broadband plan.-- The authority shall develop an

enforceable Statewide broadband plan in collaboration with local

and regional entities to advance broadband buildout for the

benefit of residents of this Commonwealth and as necessary to

facilitate access of nongovernmental entities to funding

opportunities from the Federal Government. 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 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 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 shall commit to investing

a minimum of 25% of the entity's private capital to finance a

proposed high-speed broadband service infrastructure project.

government grant, loan or subsidy received by a nongovernmental

entity to finance a proposed high-speed broadband service

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infrastructure project shall not be counted toward the private

capital investment requirement under subsection (b). A

nongovernmental entity 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,

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 days

and no longer than 150 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

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

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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

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.

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(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.

after the expiration of the application period under subsection

(a), the authority shall make the applications received

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

on the grounds that awarding a grant under section 6123 to the

applicant will result in an overbuild. A 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.

(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

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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 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

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 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).

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(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.

(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."

(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. Grant funds awarded to an applicant

who fails to complete a proposed high-speed broadband service

infrastructure project within a reasonable length of time 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). 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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