HB1029_S_Cmte_Amend

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 an eligible broadband service 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 mass-market retail service by wire, cable, fiber, or radio provided to customers in the State of Mississippi that provides the capability to transmit data to, and receive data from, all or substantially all Internet endpoints, at speeds of at least one hundred (100) megabits per second downstream and twenty (20) megabits per second upstream, and including but not limited to, any capabilities that are incidental to and enable the operation of communications service, but excluding dial-up Internet access service.

(d) "Deployed" means, with respect to availability of broadband service at a location, when the person or entity has access 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, limited liability company, partnership or association (i) that has been providing broadband service to at least one hundred (100) residences and businesses in Mississippi for at least three (3) consecutive years; (ii) is an electric power association's broadband affiliate operating pursuant to Section 77-17-1 et seq.;, or (iii) that 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 or underserved area of the state seeking to provide broadband services to residences, businesses, and community institutions not currently available for service in accordance with the applicable federal guidelines.

(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.

SECTION 3. (1) There is created a Mississippi Broadband Expansion Commission for the purpose of making final determinations and awards from applications for projects to provide broadband service in unserved or underserved areas using the Mississippi Broadband Expansion Fund created pursuant to this act. The commission shall be composed of the following seven (7) members:

(a) Three (3) members to be appointed by the Governor, with the advice and consent of the Senate; and

(b) Four (4) members to be appointed by the Lieutenant Governor, with the advice and consent of the Senate.

The Governor shall appoint one (1) member who is a resident from each of the three (3) Supreme Court districts. The Lieutenant Governor shall appoint one (1) member who is a resident from each of the four (4) congressional districts. Two (2) of the members to be appointed by the Lieutenant Governor shall be appointed only after consideration of recommendations for those appointments made by the Speaker of the House of Representatives to the Lieutenant Governor.

Of the initial appointees, the members' terms shall be staggered as follows: one (1) term appointed by the Governor to expire on December 31, 2023; one (1) term appointed by the Governor to expire on December 31, 2024; one (1) term to be appointed by the Governor to expire on December 31, 2025; two (2) terms to be appointed by the Lieutenant Governor to expire on December 31, 2024; and two (2) terms to be appointed by the Lieutenant Governor to expire on December 31, 2025. After the expiration of the initial terms, members of the board shall serve terms of five (5) years. No member shall serve more than two (2) consecutive terms. Members may be removed by the appointing public official. Upon the initial appointment of a majority of the commissioners, the Lieutenant Governor shall call the first meeting of the commission within thirty (30) calendar days, at which time the commission shall elect a chairman, a vice chairman and any other officers determined to be necessary, and shall adopt rules for transacting business and keeping records. The commission shall meet at such times as the chairman shall determine, and shall also meet upon call of three (3) or more of the commissioners. The commission shall annually elect a chairman from among its members. The commission shall keep accurate and complete records of all its meetings.

Members of the commission shall be reimbursed for expenses in the manner and amount specified in Section 25-3-41, and shall be entitled to receive additional per diem compensation of Seven Hundred Fifty Dollars ($750.00) per meeting.

Members of the commission shall not have any direct or indirect interest in an undertaking that puts their personal interest in conflict with that of the commission and shall be governed by the provisions of Section 109 of the Mississippi Constitution and Section 25-4-105. In addition, members of the commission shall not receive anything of value from, or on behalf of, any person holding or applying for broadband expansion funds under this act.

(2) Appointments to the commission shall be made within fifteen (15) days of the effective date of this act.

(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.

SECTION 4. (1) The Public Utilities Staff shall serve as the state broadband office to review applications and make recommendations to the commission for projects to provide broadband access in unserved or underserved areas using the Mississippi Broadband Expansion Fund created pursuant to this act. The commission shall approve final determinations and awards after consideration by the commission.

(2) It shall be the duty and responsibility of the Public Utilities Staff, in conjunction with the commission, to:

(a) Coordinate all broadband expansion efforts on behalf of the state to ensure an effective and efficient use of broadband grant funds;

(b) Develop the plan and application for federal grant programs and for sub-grantees to receive funds from said federal grants;

(c) Develop rules and procedures, if necessary and in accordance with the Administrative Procedures Act, to implement a competitive statewide broadband grant program;

(d) Coordinate all information provided by broadband service providers, including all broadband mapping efforts for the state. All information provided by a broadband service provider pursuant to this act shall be presumed to be confidential, proprietary, and subject to exemption from disclosure under state and federal law and shall not be subject to disclosure except in the form of a map where information that could be used to determine provider-specific information about the network of the broadband service providers is not disclosed. Such provider-specific information shall not be released to any person without written permission of the submitting broadband service provider. In no instance shall a broadband service provider be required to provide any data beyond that which it is required to provide to the Federal Communications Commission pursuant to 47 USC Section 641 et seq.; and

(e) Apply for and receive federal grants or funds, working in conjunction with the Governor when necessary, including, but not limited to, Coronavirus Capital Projects Fund established by Section 604 of the Social Security Act, as added by Section 9901 of the American Rescue Plan Act of 2021, and the Broadband Equity, Access and Deployment Program established by the Infrastructure Investment and Jobs Act.

(3) 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 Executive Director of the Public Utilities Staff, provide the assistance, information and data needed to enable the commission to carry out its duties.

(4) There is created within the State Treasury the "Mississippi Broadband Expansion Fund" for the purposes of the expansion of broadband in unserved and underserved areas. The fund shall consist of all monies designated, accepted or appropriated by the State of Mississippi for broadband deployment; all monies received from the federal government awarded to or allocated by the state for broadband deployment; and donations, gifts and monies received from any other source, including transfers from other funds or accounts. Disbursements from the fund shall be made by the Public Utilities Staff in accordance with the provisions of this act with approval of the commission. All unexpended and unencumbered monies in the fund at the end of the fiscal year shall remain in the fund. Monies in the fund shall be invested by the State Treasurer in the same manner as monies in the State General Fund and interest earned on the investment of these monies shall be credited to the fund.

SECTION 5. In making recommendations, determinations and awards, the Public Utilities Staff and 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 or underserved areas in this state; and

(b) Funds from federal broadband grant programs shall be spent in accordance with federal laws, rules, regulations and guidance, and federal laws, rules, regulations and guidance shall supersede in any instance where this act conflicts.

SECTION 6. The criteria for determining the awarding 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;

(d) The scalability of the proposed project network to support the deployment of higher broadband speeds over time;

(e) The likelihood that the unserved or underserved area will not be served with broadband service without such state or federal 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) 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) No discrimination or preference to applications on the basis of the type of technology proposed by any applicant to be used to provide broadband services so long as the technology proposed meets the federal guidelines;

(i) The size and scope of the unserved or underserved area to be deployed; and

(j) 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.

SECTION 7. In accordance with federal laws, rules, regulations and guidance, the Public Utilities Staff shall establish and publish on its website its criteria for competitively scoring applications.

SECTION 8. (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 type 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;

(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 use of funds provided under this act. Funds shall not be used to support the operational expenses of the network or to subsidize any other service provided by the applicant; and

(h) The broadband service provider's experience and financial capabilities.

(2) After scoring and considering all applications, the commission shall make its preliminary determinations. Within thirty (30) days after the preliminary determinations have been made, the Public Utilities Staff 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 preliminary determination.

(3) Within thirty (30) days from the date the preliminary determinations are published on the Public Utility Staff's website, the staff shall accept comments or objections concerning each application and investigate each of them as appropriate. The commission shall consider all comments and objections received and the investigative findings in determining whether an applicant is eligible for a final determination and award.

(4) The commission shall not make a final determination and award to an applicant if verifiable information is made available that shows the proposed project includes an area where broadband services currently are deployed, or where construction of a network to deploy broadband service is underway, and the construction is scheduled to be completed within one (1) year after the date of the application.

(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.

SECTION 9. (1) The Public Utilities Staff may expend funds from the Mississippi Broadband Expansion Fund in accordance with this act and shall notify the Lieutenant Governor, the Speaker of the House of Representatives, and the Legislative Budget Office of such expenditures prior to their distribution.

(2) The Public Utilities Staff may employ the services of such persons as the executive director considers necessary for the purposes of consultation or investigation and fix the salaries of or contract for the services of such legal, professional, technical and operational personnel and consultants, subject to applicable provisions of the State Personnel Board. Additional legal assistance may be retained in accordance with this subsection (2) only with the approval of the Attorney General.

(3) The staff shall provide to the Legislature an annual detailed report on the status and details of all projects considered and approved under this act no later than December 15 of each year.

SECTION 10. Section 31-3-1, Mississippi Code of 1972, is amended as follows:

31-3-1. The following words, as used in this chapter, shall have the meanings specified below:

"Board": The State Board of Contractors created under this chapter.

"Contractor": Any person contracting or undertaking as prime contractor, subcontractor or sub-subcontractor of any tier to do any erection, building, construction, reconstruction, demolition, repair, maintenance or related work on any public or private project; however, "contractor" shall not include any owner of a dwelling or other structure to be constructed, altered, repaired or improved and not for sale, lease, public use or assembly, or any person duly permitted by the Mississippi State Oil and Gas Board, pursuant to Section 53-3-11, Mississippi Code of 1972, to conduct operations within the state, and acting pursuant to said permit. It is further provided that nothing herein shall apply to:

(a) Any contract or undertaking on a public or private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving erection, building, construction, reconstruction, repair, maintenance or related work where such contract, subcontract or undertaking is less than Fifty Thousand Dollars ($50,000.00);

(b) Highway construction, highway bridges, overpasses and any other project incidental to the construction of highways which are designated as federal aid projects and in which federal funds are involved;

(d) A residential subdivision where the contractor is developing either single-family or multifamily lots;

(e) A new commercial construction project not exceeding seventy-five hundred (7500) square feet and not more than two (2) stories in height undertaken by an individual or entity licensed under the provisions of Section 73-59-1 et seq.;

(f) Erection of a microwave tower built for the purpose of telecommunication transmissions;

(g) Any contract or undertaking on a public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of fire protection systems where such contract, subcontract or undertaking is less than Five Thousand Dollars ($5,000.00);

(h) Any contract or undertaking on a private project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of fire protection systems where such contract, subcontract or undertaking is less than Ten Thousand Dollars ($10,000.00);

(i) Any contract or undertaking on a private or public project by a prime contractor, subcontractor or sub-subcontractor of any tier involving the construction, reconstruction, repair or maintenance of technically specialized installations if performed by a Mississippi contractor who has been in the business of installing fire protection sprinkler systems on or before July 1, 2000; * * * or

(j) Any contractor undertaking to build, construct, reconstruct, repair, demolish, perform maintenance on, or other related work, whether on the surface or subsurface, on oil or gas wells, pipelines, processing plants, or treatment facilities or other structures of facilities. Nothing herein shall be construed to limit the application or effect of Section 31-5-41 * * *.; or

(k) Any contract or undertaking by a subcontractor or sub-subcontractor of any tier involving the construction and other related work required by a licensed prime contractor in the buildout and expansion of broadband infrastructure.

"Certificate of responsibility": A certificate numbered and held by a contractor issued by the board under the provisions of this chapter after payment of the special privilege license tax therefor levied under this chapter.

"Person": Any person, firm, corporation, joint venture or partnership, association or other type of business entity.

"Private project": Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is not funded in whole or in part with public funds.

"Public agency": Any board, commission, council or agency of the State of Mississippi or any district, county or municipality thereof, including school, hospital, airport and all other types of governing agencies created by or operating under the laws of this state.

"Public funds": Monies of public agencies, whether obtained from taxation, donation or otherwise; or monies being expended by public agencies for the purposes for which such public agencies exist.

"Public project": Any project for erection, building, construction, reconstruction, repair, maintenance or related work which is funded in whole or in part with public funds.

SECTION 11. This act shall take effect and be in force from and after its passage.