wa-law.org > bill > 2023-24 > HB 1746 > Substitute Bill
The board, in collaboration with the office, shall establish a competitive grant and loan program to award funding to eligible applicants in order to promote the expansion of access to broadband service in unserved areas of the state.
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Grants and loans may be awarded under this section to assist in funding acquisition, installation, and construction of middle mile and last mile infrastructure that supports broadband services and to assist in funding strategic planning for deploying broadband service in unserved areas.
The board may choose to fund all or part of an application for funding, provided that the application meets the requirements of subsection (11) of this section.
Eligible applicants for grants and loans awarded under this section include:
Local governments;
Tribes;
Nonprofit organizations;
Cooperative associations;
Multiparty entities comprised of public entity members;
Limited liability corporations organized for the purpose of expanding broadband access; and
Incorporated businesses or partnerships.
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The board shall develop administrative procedures governing the preapplication and award process. The board shall act as fiscal agent for the program and is responsible for receiving and reviewing applications and awarding funds under this section.
At least sixty days prior to the first day preapplications may be submitted each fiscal year, the board must publish on its website the specific criteria and any quantitative weighting scheme or scoring system that the board will use to evaluate or rank applications and award funding.
The board may maintain separate accounting in the statewide broadband account created in RCW 43.155.165 as the board deems necessary to carry out the purposes of this section.
The board must provide a method for the allocation of loans, grants, provision of technical assistance, and interest rates under this section.
An applicant for a grant or loan under this section must provide the following information on the preapplication:
The location and description of the project, including detailed end-user location address information for each passing;
Evidence regarding the unserved nature of the community in which the project is to be located;
Evidence that proposed infrastructure will be capable of scaling to greater download and upload speeds;
The number of households that will gain access to broadband service as a result of the project or whose broadband service will be upgraded as a result of the project;
Evidence that before submission of the application, the applicant contacted, in writing, all entities providing broadband service near the proposed project area to ask each broadband service provider's plan to upgrade broadband service in the project area to speeds that meet or exceed the state's definition for broadband service as defined in RCW 43.330.530, within the time frame specified in the proposed grant or loan activities;
If applicable, the broadband service providers' written responses to the inquiry made under (e) of this subsection;
The proposed geographic broadband service area and the proposed broadband speeds in the form and manner prescribed by the board;
Evidence of community support for the project; and
Any additional information requested by the board.
An applicant for a grant or loan under this section must provide the following information on the application:
The final location and description of the project;
Evidence that the proposed infrastructure will be capable of scaling to greater download and upload speeds;
The number of households passed that will gain access to broadband service as a result of the project or whose broadband service will be upgraded as a result of the project;
The estimated cost of retail services to end users facilitated by a project;
The proposed actual download and upload speeds experienced by end users;
Evidence of significant community institutions that will benefit from the proposed project;
Anticipated economic, educational, health care, or public safety benefits created by the project;
If available, a description of the applicant's user adoption assistance program and efforts to promote the use of newly available broadband services created by the project;
The estimated total cost of the project;
Other sources of funding for the project that will supplement any grant or loan award;
A demonstration of the project's long-term sustainability, including the applicant's financial soundness, organizational capacity, and technical expertise;
A strategic plan to maintain long-term operation of the infrastructure;
If applicable, documentation describing the outcome of the broadband service providers' written responses to the inquiry made prior to or during the preapplication phase; and
Any additional information requested by the board.
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The board shall publish on its website for at least 30 days the proposed geographic broadband service area and the proposed broadband speeds for each proposed broadband project submitted in the preapplication period.
The board shall, within three business days following the close of the preapplication cycle, publish on its website preapplications as described in subsection (5) of this section.
The board shall set an objection period of at least 30 days.
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Any existing broadband service provider near the proposed project area that has submitted broadband mapping data to the statewide broadband office pursuant to section 3 of this act within the previous year may submit in writing to the board an objection to a proposed broadband project. An objection must contain information demonstrating that:
The project would result in overbuild, meaning that the objecting provider currently provides, or has begun construction to provide, broadband service to end users in the proposed project area at speeds equal to or greater than the speeds contained in the definition of broadband in RCW 43.330.530(4); or
The objecting provider commits to complete construction of broadband infrastructure and provide broadband service to end users in the proposed project area at speeds equal to or greater than the speeds contained in the definition of broadband in RCW 43.330.530(4), no later than twenty-four months after the date awards are made under this section for the grant and loan cycle under which the preapplication was submitted.
Objections submitted to the board under this subsection must be certified by affidavit.
The board may evaluate the information submitted under this section by the objecting provider and must consider it in making a determination on the proposed broadband project objected to. The board may request clarification or additional information. The board may choose to not fund a project if the board determines that the objecting provider's commitment to provide broadband service that meets the requirements of (a) of this subsection in the proposed project area is credible. In assessing the commitment, the board may consider whether the objecting provider has or will provide a bond, letter of credit, or other indicia of financial commitment guaranteeing the project's completion.
If the board denies funding to an applicant as a result of a broadband service provider's objection made under this section, and the broadband service provider does not fulfill its commitment to provide broadband service in the project area, then for the following two grant and loan cycles, the board is prohibited from denying funding to an applicant on the basis of a challenge by the same broadband service provider, unless the board determines that the broadband service provider's failure to fulfill the provider's commitment was the result of factors beyond the broadband service provider's control. The board is not prohibited from denying funding to an applicant for reasons other than an objection by the same broadband service provider.
An applicant or broadband service provider that objected to the application may request a debriefing conference regarding the board's decision on the application. Requests for debriefing must be coordinated by the office and must be submitted in writing in accordance with procedures specified by the office.
Confidential business and financial information submitted by an objecting provider under this subsection is exempt from disclosure under chapter 42.56 RCW.
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In evaluating applications and awarding funds, the board shall give priority to applications that are constructed in areas identified as unserved.
In evaluating applications and awarding funds, the board may give priority to applications that:
Provide assistance to public-private partnerships deploying broadband infrastructure from areas currently served with broadband service to areas currently lacking access to broadband services;
Demonstrate project readiness to proceed;
Construct infrastructure that is open access, meaning that during the useful life of the infrastructure, service providers may use network services and facilities at rates, terms, and conditions that are not discriminatory or preferential between providers, and employing accountable interconnection arrangements published and available publicly;
Are submitted by tribal governments whose reservations are in rural and remote areas where reliable and efficient broadband services are unavailable to many or most residents;
Bring broadband service to tribal lands, particularly to rural and remote tribal lands or areas servicing rural and remote tribal entities;
Are submitted by tribal governments in rural and remote areas that have spent significant amounts of tribal funds to address the problem but cannot provide necessary broadband services without either additional state support, additional federal support, or both;
Serve economically distressed areas of the state as the term "distressed area" is defined in RCW 43.168.020;
Offer new or substantially upgraded broadband service to important community anchor institutions including, but not limited to, libraries, educational institutions, public safety facilities, and health care facilities;
ix. Facilitate the use of telemedicine and electronic health records, especially in deliverance of behavioral health services and services to veterans;
Include a component to actively promote the adoption of newly available broadband services in the community;
Provide evidence of strong support for the project from citizens, government, businesses, and community institutions;
Provide access to broadband service to a greater number of unserved households and businesses, including farms;
Utilize equipment and technology demonstrating greater longevity of service;
Seek the lowest amount of state investment per new location served and leverage greater amounts of funding for the project from other private and public sources;
Include evidence of a customer service plan;
Consider leveraging existing broadband infrastructure and other unique solutions;
Benefit public safety and fire preparedness;
Are submitted by applicants who have submitted broadband mapping data to the statewide broadband office pursuant to section 3 of this act within the previous year; or
Demonstrate other priorities as the board, in collaboration with the office, may prescribe by rule.
The board shall endeavor to award funds under this section to qualified applicants in all regions of the state.
The board shall consider affordability and quality of service to end users in making a determination on any application.
The board, in collaboration with the office, may develop additional rules for eligibility, project preapplications, project applications, the associated objection process, and funding priority, as provided under this subsection and subsections (3), (5), (6), (7), and (8) of this section.
The board, in collaboration with the office, may adopt rules for a voluntary nonbinding mediation between incumbent providers and applicants to the grant and loan program created in this section.
To ensure a grant or loan to a private entity under this section primarily serves the public interest and benefits the public, any such grant or loan must be conditioned on a guarantee that the asset or infrastructure to be developed will be maintained for public use for a period of at least fifteen years.
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No funds awarded under this section may fund more than fifty percent of the total cost of the project, except as provided in (b) of this subsection.
The board may choose to fund up to ninety percent of the total cost of a project in financially distressed areas as the term "distressed area" is defined in RCW 43.168.020, and in areas identified as Indian country as the term "Indian country" is defined in WAC 458-20-192.
Funds awarded to a single project under this section must not exceed two million dollars, except that the board may choose to fund projects qualifying for the exception in (b) of this subsection up to, but not to exceed, five million dollars.
The board shall have such rights of recovery in the event of default in payment or other breach of financing agreement as may be provided in the agreement or otherwise by law.
The community economic revitalization board shall facilitate the timely transmission of information and documents from its broadband program to the board in order to effectuate an orderly transition.
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Subject to rules promulgated by the board, the board may make low-interest or interest-free loans or grants to eligible applicants for emergency public works broadband projects. While developing rules, the board shall consider prioritizing broadband infrastructure projects that replace existing infrastructure impacted by an emergency, as described in (b) of this subsection.
Emergency public works broadband projects include construction, repair, reconstruction, replacement, rehabilitation, or improvement to critical broadband infrastructure that has been made necessary by a natural disaster or damaged by unforeseen events. To ensure limited resources are provided as efficiently as possible, the board shall grant priority to emergency public works projects that replace existing infrastructure of the provider whose facilities were damaged by the unforeseen event and shall not provide funds to a new provider to overbuild the existing provider. The loans or grants may be used to help fund all or part of an emergency public works broadband infrastructure project less any reimbursement from any of the following sources: (i) Federal disaster or emergency funds, including funds from the federal emergency management agency; (ii) state disaster or emergency funds; (iii) insurance settlements; and (iv) litigation.
Eligible applicants for grants and loans awarded under this subsection are the same as those described in subsection (3) of this section.
The definitions in RCW 43.330.530 apply throughout this section unless the context clearly requires otherwise.
For purposes of this section, a "proposed broadband project" means a project that has been submitted as a preapplication to the public works board.
The office has the power and duty to:
Serve as the central broadband planning body for the state of Washington;
Coordinate with local governments, tribes, public and private entities, public housing agencies, nonprofit organizations, and consumer-owned and investor-owned utilities to develop strategies and plans promoting deployment of broadband infrastructure and greater broadband access, while protecting proprietary information;
Review existing broadband initiatives, policies, and public and private investments;
Develop, recommend, and implement a statewide plan to encourage cost-effective broadband access and to make recommendations for increased usage, particularly in rural and other unserved areas;
Update the state's broadband goals and definitions for broadband service in unserved areas as technology advances, except that the state's definition for broadband service may not be actual speeds less than twenty-five megabits per second download and three megabits per second upload;
Encourage public-private partnerships to increase deployment and adoption of broadband services and applications; and
Develop and maintain a state broadband map in accordance with section 3 of this act and participate in federal broadband mapping activities. The department, including the office, is the single eligible entity in the state for purposes of the federal broadband mapping activities.
When developing plans or strategies for broadband deployment, the office must consider:
Partnerships between communities, tribes, nonprofit organizations, local governments, consumer-owned and investor-owned utilities, and public and private entities;
Funding opportunities that provide for the coordination of public, private, state, and federal funds for the purposes of making broadband infrastructure or broadband services available to rural and unserved areas of the state;
Barriers to the deployment, adoption, and utilization of broadband service, including affordability of service and project coordination logistics; and
Requiring minimum broadband service of twenty-five megabits per second download and three megabits per second upload speed, that is scalable to faster service.
The office may assist applicants for the grant and loan program created in RCW 43.155.160, the digital equity opportunity program created in RCW 43.330.412, and the digital equity planning grant program created in RCW 43.330.5393 with seeking federal funding or matching grants and other grant opportunities for deploying or increasing adoption of broadband services.
The office may take all appropriate steps to seek and apply for federal funds for which the office is eligible, and other grants, and accept donations, and must deposit these funds in the statewide broadband account created in RCW 43.155.165.
The office shall coordinate an outreach effort to hard-to-reach communities and low-income communities across the state to provide information about broadband programs available to consumers of these communities. The outreach effort must include, but is not limited to, providing information to applicable communities about the federal lifeline program and other low-income broadband benefit programs. The outreach effort must be reviewed by the office of equity annually. The office may contract with other public or private entities to conduct outreach to communities as provided under this subsection.
In carrying out its purpose, the office may collaborate with the utilities and transportation commission, the office of the chief information officer, the department of commerce, the community economic revitalization board, the department of transportation, the public works board, the state librarian, and all other relevant state agencies.
Subject to the availability of amounts appropriated for this specific purpose, the office shall develop and maintain a state broadband map indicating the addresses of serviceable locations and capability of broadband service in this state. The office must provide the initial map by July 1, 2024, and must update the map at least twice per year.
Covered entities must submit updated data concerning broadband infrastructure deployment to the office twice per year to assist the office in developing and maintaining the state broadband map. The information provided to the office must include any information that is required to be submitted to the federal communications commission pursuant to the broadband deployment accuracy and technological availability act, 47 U.S.C. Sec. 641 et seq., as it existed on the effective date of this section. The submitted information must also include detailed end-user location address information for broadband infrastructure deployment in the state. Covered entities that do not provide broadband service to end-users in the state must provide updated data regarding the location of infrastructure utilized in support of end-user connections. Covered entities must submit such information to the office annually on dates specified by the office, in a manner and format to be specified by the office. The dates of required submissions to the office must be within 15 days of the expiration of the dates required for submission of mapping information to the federal communications commission pursuant to the broadband deployment accuracy and technological availability act, 47 U.S.C. Sec. 641 et seq., as it existed on the effective date of this section.
The office may not administer any state grants to a covered entity that has not complied with the requirements of this section during the calendar year in which noncompliance was determined and the following calendar year. However, nothing in this section shall be construed to affect eligibility for a grant of solely federal dollars that have been appropriated through the state budget to the office.
The office may share data with other state agencies, tribes, or entities of local government that would benefit from access and use of broadband mapping data collected in accordance with this section. Sharing of broadband mapping data must adhere to the provisions and requirements of RCW 39.26.340 and 39.34.240 as applicable. The office may not sell broadband mapping data submitted by covered entities. In determining how submitted broadband mapping data may be shared with other state agencies, the office must consider how to afford such data the greatest confidentiality protections practicable.
The office may contract with a private entity or third-party consultant to develop and maintain the state broadband map. Any contract entered into by the office and a private entity or third-party consultant for the purpose of developing and maintaining the state broadband map must specify that any mapping data submitted or developed in accordance with this section for the purposes of identifying broadband serviceable locations, classifications of unserved, underserved, and served, or aggregated data and statistics on broadband availability by different geography types is not the property of the private entity or third-party consultant. Such contract must also prohibit the disclosure by the private entity or third-party consultant of any mapping data submitted to the office in accordance with this section and require the private entity or third-party consultant to only use submitted mapping data to effectuate the purposes of the contract.
The office must establish a process to receive and evaluate petitions to correct inaccuracies in the map. Such process may include developing an interactive website to allow residents to self-report whether broadband is available at their home or residence and at what speed.
Subject to the availability of amounts appropriated for this specific purpose, to supplement mapping information submitted by covered entities, the office may also conduct a detailed survey of broadband infrastructure owned or leased by state agencies and compile mapping data of broadband infrastructure owned or leased by the state. State agencies responding to a survey request from the office under this subsection must respond in a reasonable and timely manner, not to exceed 120 days. Fiber, cable, or other infrastructure routes and addresses reported to the office by state agencies are confidential and not subject to disclosure. In any survey request, the office may request of state agencies any information it deems reasonably necessary, including but not limited to:
The routes along which state-owned fiber optic facilities are in place;
The cost of maintaining that fiber optic infrastructure, if owned, or the price paid for the broadband infrastructure, if leased; and
The leasing entity, if applicable.
The office may consult other state agencies and incorporate other data sources into the state broadband map as it deems helpful to the process of developing and maintaining the state broadband map.
For the purpose of this section, the following definitions apply:
"Covered entity" means a broadband service provider or other entity that owns or operates broadband infrastructure in the state or offers their broadband infrastructure for sale or lease in the provision of broadband service.
"State agency" means every state office, department, division, bureau, board, or commission.
The office may adopt rules as necessary to carry out the provisions of this section.
The statewide broadband account is created in the state treasury. Moneys received from appropriations by the legislature, the proceeds of bond sales when authorized by the legislature, repayment of loans, or any other lawful source must be deposited into the account for uses consistent with this section. Moneys in the account may be spent only after appropriation.
Expenditures from the account may be used only:
For grant and loan awards made under RCW 43.155.160, including costs incurred by the board to administer RCW 43.155.160;
To contract for data acquisition, a statewide broadband demand assessment, or gap analysis;
To supplement revenues raised by bonds sold by local governments for broadband infrastructure development;
To provide for state match requirements under federal law; or
To develop and maintain a statewide broadband map.
The board must maintain separate accounting for any federal funds in the account.
The definitions in RCW 43.330.530 apply throughout this section unless the context clearly requires otherwise.
The following financial, commercial, and proprietary information is exempt from disclosure under this chapter: