MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Energy
By: Senator(s) Carter, Hickman, Caughman
AN ACT TO CREATE THE MISSISSIPPI BROADBAND EXPANSION ACT; TO DEFINE TERMS USED IN THE ACT; TO CREATE THE AMERICAN RESCUE PLAN ACT (ARPA) BROADBAND COMMISSION FOR THE PURPOSE OF REVIEWING APPLICATIONS FOR FUNDING BROADBAND INFRASTRUCTURE PROJECTS AND MAKING RECOMMENDATIONS TO THE LEGISLATURE OF THE PROJECTS TO BE FUNDED USING ARPA FUNDS; TO PROVIDE FOR THE MEMBERS OF THE COMMISSION AND TO PRESCRIBE POWERS AND DUTIES; TO PROVIDE THAT THE COMMISSION SHALL CONSIDER CERTAIN FACTORS IN MAKING ITS RECOMMENDATIONS; TO REQUIRE THE COMMISSION TO ESTABLISH AND PUBLISH ON ITS WEBSITE ITS CRITERIA FOR COMPETITIVELY SCORING APPLICATIONS; TO REQUIRE AN APPLICANT TO PROVIDE CERTAIN INFORMATION AT A MINIMUM ON THE APPLICATION; TO REQUIRE THE COMMISSION TO MAKE PRELIMINARY RECOMMENDATIONS; TO REQUIRE THE COMMISSION TO ACCEPT COMMENTS AND OBJECTIONS CONCERNING EACH PRELIMINARY RECOMMENDATION; TO REQUIRE THE COMMISSION TO MAKE ITS FINAL RECOMMENDATIONS TO THE LEGISLATURE AFTER CONSIDERING ALL COMMENTS AND OBJECTIONS AND INVESTIGATING THEM AS NEEDED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Broadband Expansion Act."
SECTION 2. As used in this act:
(a) "Applicant" means a private provider that has authorization to do business in this state and has demonstrated that it has the technical, financial, and managerial resources and experience to provide broadband services in the state to retail end users.
(b) "Broadband service" means a retail fixed terrestrial service capable of delivering high-speed internet access at speeds of at least one hundred (100) megabits per second downstream and twenty (20) megabit per second upstream.
(c) "Commission" means the American Rescue Plan Act (ARPA) Broadband Commission created in Section 3 of this act.
(d) "Deployed" means, with respect to availability of broadband service at a location, that a broadband service provider currently has a broadband service connection at the location or could provide an broadband service connection to a customer that requests broadband service at the location not later than ten (10) business days after the customer requests broadband service and without extraordinary commitment of resources or construction charges or fees exceeding an ordinary service activation fee. Broadband service is considered to be deployed at a location regardless of whether a person or entity subscribes to the broadband service at the location.
(e) "Eligible broadband service provider" means any company, firm, corporation, partnership, or association that either has been providing broadband service to at least one hundred (100) residences and businesses in Mississippi for at least three (3) consecutive years, or is an electric power association's broadband affiliate operating pursuant to Section 77-17-1 et seq.; and has demonstrated financial, technical, and operational capability in building and operating a broadband network.
(f) "Eligible project" means a discrete and specific project located in an unserved area of the state seeking to provide broadband services to residences, businesses, and community institutions not currently available for service as defined herein. Eligible projects do not include middle mile, backhaul, or other similar projects not providing broadband services to end users. Projects in proposed areas in which there is already at least one provider of fixed terrestrial broadband services are not eligible.
(g) "Shapefile" means a digital storage format containing geospatial or location-based data and attribute information regarding the availability of broadband internet access service, and that can be viewed, edited, and mapped in geographic information system software.
(h) "Unserved area" means an area lacking access to broadband service from at least one (1) provider of fixed terrestrial broadband service according to the Federal Communications Commission's most current broadband deployment data.
SECTION 3. (1) There is hereby created an American Rescue Plan Act (ARPA) Broadband Commission for the purpose of reviewing applications for projects to provide broadband access in unserved areas using American Rescue Plan (ARPA) funds. The commission shall be composed of the following five (5) members:
(a) Three (3) members to be appointed by the Governor; and
(b) Two (2) members to be appointed by the Lieutenant Governor.
The commission shall review applications and shall provide recommendations on which projects should be funded to the Legislature on or before December 31, 2022. Members of the commission shall serve without compensation for their services.
(2) Appointments to the commission shall be made within thirty (30) days of the effective date of this act. At the first meeting, the commission shall elect from among its membership a chairman, a vice chairman and any other officers determined to be necessary, and shall adopt rules for transacting business and keeping records.
(3) A majority of the members of the commission shall constitute a quorum. In the adoption of rules, resolutions and reports, and in the election of a chairman, vice chairman and any other officers determined to be necessary, an affirmative vote of a majority of the members present shall be required.
(4) The Public Utilities Staff shall provide the staff and other support necessary for the commission to perform its duties.
(5) To effectuate the purposes of this act, any department, division, board, bureau, committee, institution or agency of the state, or any political subdivision thereof, shall, at the request of the chairman of the commission, provide the facilities, assistance, information and data needed to enable the commission to carry out its duties.
SECTION 4. In making its recommendations, the commission shall consider the following:
(a) Funds for the grant program shall only be used by applicants for projects that exclusively extend broadband service into unserved areas in this state.
(b) Funds shall not be directly or indirectly awarded to a governmental entity or educational institution or an affiliate, to own, purchase, construct, operate or maintain a communications network, or to provide service to any residential or commercial premises.
(c) As a condition of funding, an applicant must not obtain financing from any other government grants, loans or subsidies that is offered to support deployment of broadband service in the same unserved areas.
(d) The commission shall not recommend more than Five Million Dollars ($5,000,000.00) to any one (1) project.
SECTION 5. The criteria for recommending to the Legislature an appropriation of funds shall include the following:
(a) The applicant's experience and financial wherewithal to deploy, operate and manage the proposed project and broadband service offerings, including evidence of the applicant's successful operations of broadband services to retail end users.
(b) The readiness to build, operate and maintain the project.
(c) Projects that will deploy broadband service to the most unserved areas for the lowest grant amount per location.
(d) The scalability of the proposed project network to support the deployment of higher broadband speeds over time.
(e) The likelihood that the unserved area will not be served with broadband service without state grant funding.
(f) The applicant's ability to demonstrate the community's support for the project and a collaborated plan to leverage broadband services for community needs and economic development, such as rural development, education, tourism, new investment, or business attraction or retention.
(g) The commission shall grant a preference for those applications seeking to deploy and provide broadband services to areas in which there is currently no fixed terrestrial internet access service available.
(h) The ability of the applicant to commit to providing at least twenty percent (20%) of the cost to deploy the proposed broadband infrastructure. When multiple applications for a grant to provide broadband services to the same geographic area are submitted, the commission may establish a greater preference for recommending the applications with a greater commitment of funding by the applicant.
(i) The commission shall not discriminate or give any preferences to applications on the basis of the type of technology proposed by any applicant to be used to provide broadband services.
SECTION 6. Within sixty (60) days after the effective date of this act and after notice and opportunity to comment, the commission shall establish and publish on its website its criteria for competitively scoring applications. Specific criteria to be considered when weighing or scoring an application are as follows:
(a) The size and scope of the unserved area to be deployed.
(b) The experience, technical ability, and financial capability of the applicant to successfully deploy broadband service infrastructure and provide high-speed broadband service.
(c) Length of time which the applicant has been providing broadband service.
(d) The extent to which federal, state or local government funding support is necessary to deploy broadband service network infrastructure in an economically feasible manner in the proposed project area.
(e) The proportion of the private capital pledged by the applicant to finance the proposed project.
(f) The broadband service speed thresholds proposed in the application and the scalability of the broadband service network infrastructure proposed to be deployed to provide broadband service to households and businesses.
(g) An affidavit that no project grant funds are to be used to overbuild an area that is already served with broadband service.
SECTION 7. (1) An applicant for funding under this act shall provide the following information at a minimum on the application:
(a) The location of the project by use of a shapefile.
(b) The kind and amount of broadband infrastructure to be deployed for the project, including the amount the applicant intends to invest in the project from private funds.
(c) Evidence regarding the unserved nature of the community in which the project is to be located.
(d) The number of households that will have access to broadband service as a result of the project, or whose internet access service will be upgraded to broadband service as a result of the project.
(e) The significant community institutions that will benefit from the proposed project.
(f) Evidence of community support for the project with a narrative on the impact that the investment will have on community and economic development efforts in the area.
(g) The total cost of the project and a detailed budget and schedule for the project, including the submission of a business plan that provides for the sole use of funds provided under this act are to be used solely for the nonrecurring expenses of constructing network facilities, and such funds shall not be used to support the operational expenses of the network or to subsidize any other service provided by the applicant.
(h) The broadband service provider's experience and financial capabilities, including that the provider must be operating existing network facilities of a similar size and scope providing broadband services and can demonstrate that such operations are financially sound.
(i) An affidavit that no project grant funds are to be used to overbuild an area that is already served with broadband service.
(2) After scoring and considering all applications, the commission shall make its preliminary recommendations. Within thirty (30) days after the preliminary recommendations have been made, the commission shall publish on its website the applications, the proposed geographic broadband service area illustrated by a shapefile, and the proposed broadband service speeds for each application that receives a recommendation.
(3) Within sixty (60) days from the date the preliminary recommendations are published on the commission's website, the commission shall accept comments or objections concerning each application. The commission shall consider all comments or objections received and investigate them as needed, in deciding whether an applicant is eligible for a final recommendation. If an objection submitted by a provider contains information that requires an investigation and the objection is found to be inaccurate, the provider shall reimburse the commission for the cost of verifying the information.
(4) The commission shall not recommend to the Legislature an applicant if verifiable information is made available that shows any of the following:
(a) The proposed project includes an area that is already being served by at least one (1) provider offering broadband service or who has deployed broadband facilities to an area.
(b) The proposed project includes an area where construction of a network to provide broadband service is underway, and the construction is scheduled to be completed within one (1) year after the date of the application.
(c) The proposed project includes an area where the construction of a network to provide broadband service is to be completed no later than three (3) years after the date of an application.
(d) The project includes an area that has been selected to receive, provisionally or otherwise, federal funding, including but not limited to, the Connect America Fund or Rural Digital Opportunity Fund from the Federal Communications Commission and the ReConnect Loan and Grant Program or Rural Utilities Service Program from the United States Department of Agriculture. If a recommendation is rejected because of an objection pertaining to paragraph (c) of this subsection, the internet service provider installing the broadband service in lieu of the improper recipient shall provide notice to the commission when the construction of the broadband service is completed. If no notice is received, or if the completion date is later than the three (3) years allowed for in this section, the internet service provider shall reimburse the commission for the cost of verifying the status of the provider's construction.
(5) An applicant's or challenging party's trade secrets, financial information, and proprietary information submitted under this act as part of an application or challenge are exempt from disclosure under the Mississippi Public Records Act, Section 25-61-1 et seq.
(6) After considering all comments or objections and investigating them as needed, the commission shall report on or before December 31, 2022, to the Legislature with its final recommendations of applicants that should be funded.
SECTION 8. This act shall take effect and be in force from and after July 1, 2022.