CHAPTER
Bea 400 BROADBAND
MATCHING GRANT INITIATIVE (BMGI)
Statutory Authority:
RSA 12:O-62, I
PART
Bea 401 PURPOSE
AND SCOPE
Bea 401.01 Purpose.
(a) The purpose of the broadband matching grant initiative
(BMGI) is to help communities, internet service providers (providers), and
communication districts address existing broadband availability gaps within
unserved locations.
(b) The purpose of the broadband matching grant fund
(BMGI fund) is to be a funding mechanism, separate and distinct from all other
funds, to assist successful applicants in fulfilling the requirements of the
statute. These funds are dedicated funds under RSA 6:12, I (b), (373).
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 401.02 Scope. Any broadband provider, political subdivision,
or communications district formed under RSA 53-G shall be eligible for a grant based
upon the percentage stated in RSA 12-O:61, III, and based upon an application
that meets the criteria as noted in Bea 404.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
PART
Bea 402 DEFINITIONS
Bea 402.01 Definitions.
(a) “Broadband” means
“broadband” as defined in RSA 38:38, I (c).
(b) “Broadband
infrastructure” means “broadband infrastructure” as defined in RSA 38:38, I (e).
(c) “Broadband infrastructure bonds” means “broadband infrastructure
bonds” as defined in RSA 33:3-g, I, namely, “financing the development,
construction, reconstruction, renovation, improvement, and acquisition of
broadband infrastructure in any locations within a municipality unserved by
broadband as defined in RSA 38:38, I (c).”
(d) “Broadband
service” means the “broadband service” as defined in RSA 38:38, I (f), unless
the provisions of RSA 12-O:62, VIII apply.
(e) “Commissioner”
means the commissioner of the department of business and economic affairs.
(f) “Communications
district” means “district” as defined in RSA 53-G:1, II.
(g) “Department”
means the department of business and economic affairs (BEA).
(h) “Eligible service area” means the unserved locations within
the political subdivision(s) that would receive broadband service through the BMGI.
(i)
“Internet service provider” means an entity that provides
subscribers with access to the internet.
(j) “Locations” means the locations as defined within RSA
33:1, IV.
(k) “Overbuild” means the construction of broadband infrastructure to
locations not eligible for funding through the BMGI because broadband is
already available to those locations at the time of application to the BMGI. Construction of broadband infrastructure
on poles with other telecommunications providers in order to provide broadband
service to grant eligible locations is not considered overbuild.
(l) “Underserved locations” means
the geographic places within the state where
the infrastructure that currently provides service does not meet the minimum
definition of broadband in RSA 38:38, I (c), or as determined by funding
mechanism.
(m) “Unserved
locations” means the geographic locations
within the state that lack access to broadband
service, as defined in RSA 38:38, I (f), from at least one broadband provider.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
PART
Bea 403 BMGI REQUIREMENTS
Bea 403.01 Criteria
for Application. Any New Hampshire
municipality or communication district, as well as any provider
doing business within New Hampshire, may apply to the BMGI Fund, and any
provider that applies shall adhere to RSA 12-O:62, III.
Source. #13515, INTERIM,
eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 403.02 Review
of BMGI Fund Requests.
(a) BEA shall provide one or more application
periods. Application windows shall remain open for a pre-determined amount of time and notification of the application
windows shall be made available to all entities noted in Bea 404.01. The
commissioner and the broadband program manager shall review BMGI fund after the
application window closes.
(b) The
commissioner and the broadband program manager shall review BMGI fund
requests against applicable federal funding
requirements.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 403.03 Delivery
of Materials. The delivery of
materials shall be the responsibility of the applicant. Applicants may send
applications via mail, hand-delivery, or electronic mail to the following
address:
NH Department of Business and Economic Affairs
Division of Economic Development
Broadband Program Manager
100 N Main St.
Concord, NH 03301
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 403.04 Failure
to Comply. Failure to provide any of
the information as noted in Bea 404.05 shall result in denial of a BMGI grant in accordance with RSA 541-A:29.Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23
PART Bea 404 APPLICATION FOR
BMGI FUNDS
Bea 404.01 Notification.
BEA shall make all political
subdivisions aware of the BMGI program through electronic notification. Those notified shall include, but not be
limited to, members of a city council, town council, town select board, town
managers or administrators, county administrators, county commissioners, or
administrative staff that directly help the leadership of a political
subdivision.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 404.02 Required
Information from Applicant.
(a) The applicant
shall complete and submit the following information to BEA:
(1) Form
BMGI-01, “Fund Application,” revised 05-23;
(2) Form
BMGI-02, “Estimated Project Timeline,” revised 05-23;
(3) If
applicable, an overbuild statement, which explains the purpose of an overbuild
and how it is necessary so as to provide broadband in unserved and underserved locations.
The applicant shall certify no BMGI funds or applicant match shall be proposed
to be used for purposes of the overbuild to served locations;
(4) If the
project involves bonding, proof the political subdivision or the communications
district met all the requirements of RSA 33:3-g, including copies of the
following:
a. The request
for information (RFI) issued by the political subdivision or communication
district and all responses received from providers
pursuant to the RFI request subject to the data protection provisions in Bea 407;
b. The request
for proposal (RFP) issued by political subdivision or communication district
and all responses received from providers pursuant to the RFP request subject
to the data protection provisions in Bea 407;
c. The public
notice and minutes from at least one public hearing regarding the issuance of bonds;
d. The results
of the legislative body’s vote on the issuance of bonds, if applicable;
e. An overview
on how the applicant anticipates spending BMGI funds;
(5)
Address-level information identifying the unserved locations within the eligible service area, in
Microsoft Excel® spreadsheet form;
(6) Official minutes with the results of the governing body’s vote on the agreed-upon
BMGI provider, and the minutes shall include:
a. A finding by
the governing body that the agreed-upon BMGI provider is technically,
managerial, and financially capable of meeting the obligations of the Fund
request; and
b. If
applicable, information about other providers the municipality considered, including
number of unserved and underserved locations proposed to serve, the amount of
subsidy requested, and the total cost of the project;
(7) If
applicable, a statement of compliance with federal labor and construction
standard requirements as required by the federal funding guidance as
referenced in Appendix II or the notice of funding opportunity;
(8) Confirmation
that the provider shall participate in the Federal Communication Commission’s
Affordable Connectivity Program;
(9) A
disclosure statement that the provider shall offer at least one low-cost option
offered at speeds that are sufficient for a household with multiple users to
simultaneously telework and engage in remote learning; and
(10) If the
cost per passing as cited in the application is more than $12,000, the
applicant shall provide a cost justification for the project.
(b) Upon receipt of the application, the
commissioner of BEA and the broadband project manager shall review the
documents to ensure the applicant fulfilled all requirements of Bea 404.01 and
Bea 404.02. If deemed that all information is submitted, they shall review the
documentation to make sure the applicant has fulfilled the requirements of Bea
404.02.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 404.03 Scoring
of BMGI Fund for Applications.
(a) The department shall assign points based to
each application as specified in (c)(1)-(8) and add the points together to get
one point total, or score, for the application as a whole.
(b) An applicant
shall score 8 points to qualify for BMGI funds. If the applicant scores less
than 8 points, it shall be deemed a non-approval as noted in Bea 404.05.
(c) The scoring
criteria shall be as follows:
(1) If an
applicant has completed and has the required signatures on Form BMGI-01, “Fund
Application,” revised 05-23, 1 point;
(2) If an
applicant has completed Form BMGI-02, “Estimated Project Timeline,” revised 05-23,
1 point;
(3) If the ISP
and political subdivision(s) have agreed to the number and addresses of
locations currently unserved within the political subdivision(s), that will
have the capacity to access broadband service through the proposed project, 1 point;
(4) If an
applicant has committed to a standard and reliable minimum upload/download
speeds as stated by the requirement of the funding source, 1 point;
(5) If an
applicant discloses it offers at least one low-cost option offered at speeds
that are sufficient for a household with multiple users to simultaneously
telework and engage in remote learning, 1 point;
(6) If an
applicant confirms it shall participate in the Federal Communication
Commission’s Affordable Connectivity Program, or its replacement, 1 point;
(7) If an
applicant certifies it shall comply, as applicable, with all federal labor and
construction standard requirements as required by the Department of Treasury, 1
point; and
(8) If an
applicant submits address-level information identifying the unserved locations
within the eligible service area, in Microsoft Excel® spreadsheet form, 1 point.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 404.04 Approval of BMGI Funds for
Applicant.
(a) If the applicant is approved pursuant to Bea
403.02 and Bea 403.03, then the department shall issue a letter with
instructions for how to submit additional information as referenced by Bea 406.
(b) No contract shall be executed between BEA and
the successful applicant until the challenge period has passed or any
challenges have been fully addressed. No funds shall be issued until the
contract is signed and approved by the governor and executive council.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 404.05 Non-Approval
of BMGI Funds for Applicant.
(a) If the applicant is not approved pursuant to
Bea 403.04 above, the department shall issue a letter stating the locations in
which the application was deficient. The applicant shall receive a
non-acceptance letter signed by the commissioner. This letter shall state locations
where the application was deficient in satisfying the requirements of Bea 404.02.
(b) The applicant shall have 15 calendar days to
resubmit information to remedy the deficiencies, in which time the commissioner
and the broadband project manager shall review the documents to ensure the
applicant fulfilled all remaining requirements.
(c) Applications
not resubmitted within the time frames stated in RSA 541-A:29 shall be considered withdrawn.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
PART Bea 405 CHALLENGE PROCESS
Bea 405.01 Challenge Process.
(a) Upon issuing
a preliminary acceptance letter, BEA shall post on its website and notify all
interested parties of the award based upon list by
town of all providers interested in receiving requests for information, as
noted in RSA 33:3-g, IV. This information shall include a
description of the proposed project and a Microsoft Excel® spreadsheet with unserved and
underserved locations within the project area. Any party shall
have 30 calendar days to challenge the decision and provide proof to BEA that
RSA 12-O:62, II(b) has not otherwise been fulfilled.
(b)
Within this timeline, the challenging
party shall provide the following:
(1) Name of challenger;
(2) Organization, if any, challenger represents;
(3) Address, city, state, and Zip code of challenger;
(4) Challenger’s telephone number;
(5) Challenger’s electronic mail address;
(6) One-paragraph summary of the challenge; and
(7) Detailed proof the application are in violation of RSA 12-O:62, II(b).
(c) Upon receipt
of the challenge, the commissioner and the broadband project manager shall
review the documents and provide a written decision to the challenger and the
applicant within 30 calendar days.
(d) If the
challenge does not meet the parameters of RSA 12-O:62, II(b), the commissioner
shall negotiate a contract with the applicant.
(e) If the
challenge does meet the parameters of RSA 12-O:62, II(b), the applicant shall
have 30 days to resubmit information to remedy the deficiency, in which time
the commissioner and the broadband project manager shall review the documents
to ensure the applicant fulfilled all remaining requirements. If the applicant
satisfies the challenge, the commissioner shall negotiate a contract with the
applicant.
(f)
Pursuant to RSA 12-O:62, II(b), a provider who successfully challenges
an application’s eligibility for funding because construction has commenced
shall complete construction as soon as practical. The provider shall provide
BEA and the municipality a summary of existing progress and a timeline for
completion of the project within the successfully challenged locations.
(g)
If the funding source incorporates its
own challenge process, than it shall control and
supersede.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
PART
Bea 406 POST-GRANT
REQIREMENTS AND REPORTING
Bea 406.01 Reporting Requirements.
(a) Within 14 calendar days of the applicant
expending funds to begin the project, the applicant shall inform BEA, via written or electronic mail, that construction of
the project has started. This communication shall note
whether construction has started in an unserved or underserved location.
(b) Every 3
months, the applicant shall submit to BEA, via written or electronic mail, a
project update including
the following:
(1) Percentage
of construction completed;
(2) Amount and
percent of BMGI funds spent;
(3) Any changes
in construction timeline; and
(4) A breakdown
of costs as stated in RSA 12-O:62, IV.
(5) If known,
any additional broadband projects happening within the eligible service area.
(c) The applicant may, via written or electronic
mail, request an extension of 14 calendar days to provide such information. The
request shall include the reason for delay and
whether such extension requests are expected for future reporting periods. Such
requests shall happen before the day reporting is required. BEA shall respond
in a timely manner on whether to grant the extension.
(d) Failure to provide
timely reporting to BEA of information required by Bea 406.01 shall result in
non-compliance of the contract. BEA, in consultation with the New Hampshire
department of justice, shall consider legal options to require compliance of
the contract or the return of BMGI funds
to the state treasury for noncompliance or breach of contract.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
PART
Bea 407 DATA
PROTECTION
Bea 407.01 Protection of Trade Secrets, Financial
Information, and Proprietary Information.
(a) Pursuant to RSA 12-O:62, II (c), certain
information shall be exempt from disclosure under RSA 91-A. This information includes:
(1) Trade secrets;
(2) Financial
information; and
(3) Other
proprietary information.
(b) This information shall pertain to information
about the provider given by itself, a political subdivision(s), or the
communication district. This information shall not pertain to information
related to the determination of eligible service areas or locations proposed to
be served by an applicant to the BMGI.
(c) BEA shall
maintain the information in (a) above in a password-protected account with
limited access to the commissioner, staff the commissioner deems critical to
BMGI, and those required by law to have this information.
(d) All further
inquiries regarding the release of said information shall be directed to the department of justice,
office of the attorney general.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
Bea 407.02 Other Information. Any information communicated to BEA that does
not fit the categories listed within Bea 407.01 shall be subject to RSA 91-A.
All information transmitted by BEA regarding the BMGI shall be subject to RSA
91-A.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
PART Bea 408 INFORMATION
Bea 408.01 Information. The
public may obtain information regarding the BMGI program and the BMGI fund by contacting BEA as described in Bea 403.03.
Source. #13515,
INTERIM, eff 1-5-23, EXPIRES: 7-4-23; ss by #13734, eff 9-1-23
APPENDIX I
|
Provision of the Proposed Rule |
Specific State or Federal Statutes or
Regulations which the Rule is intended to implement |
|
Bea
401.01 |
RSA
6:12, I (b), (373); RSA 12-O:61; RSA 12-O:62, III; RSA 12-O:63 |
|
Bea
401.02 |
RSA
12-O:61, III |
|
Bea
402.01 |
RSA
33:1, IV; RSA 38:38, I (c), (e), & (f); RSA
53-G:1, II |
|
Bea
403.01 |
RSA
12-O:61, III; RSA 12-O:62, III |
|
Bea
403.02 through Bea 403.03 |
RSA
12-O:62, I-VII |
|
Bea
403.04 |
RSA
12-O:62, I-VII; RSA 541-A:29 |
|
Bea
404.01 |
RSA
12-O:62, I |
|
Bea
404.02 |
RSA 12-O:62, I-V |
|
Bea
404.03 through Bea 404.04 |
RSA
12-O:62, I |
|
Bea
404.05 |
RSA
12-O:62, I;
RSA 541-A:29 |
|
Bea
405.01 |
RSA
12-O:62, II (b) |
|
Bea
406.01 |
RSA 12-O:62, V-VI |
|
Bea
407.01 through Bea 407.02 |
RSA
12-O:62, II (c) |
|
Bea
408.01 |
RSA
12-O:62, I |
|
Provision of the Proposed Rule |
Title |
Obtain
at: |
|
Bea 403.02 (b), Bea 404.02 (b)(7). |
||
|
“Notice of Funding Opportunity – Broadband Equity, Access, and Deployment Program” May 2022 |
https://broadbandusa.ntia.doc.gov/sites/default/files/2022-05/BEAD%20NOFO.pdf |