Preproposal statement of inquiry was filed as WSR 19-15-089.
Title of Rule and Other Identifying Information: Title 399 WAC, Public works board.
Hearing Location(s): On March 31, 2020, at 1:00 p.m., at the Washington Department of Commerce, Public Works Board, 1011 Plum Street S.E., Building 5, Columbia Room, Olympia, WA 98501. A map is available at http://www.commerce.wa.gov/wp-content/uploads/2018/06/Town-Square-Campus-Visitor-Parking-Map-v7.0.pdf or calling 360-725-4000.
Date of Intended Adoption: April 2, 2020.
Submit Written Comments to: Connie Rivera, P.O. Box 42525, Olympia, WA 98504, email firstname.lastname@example.org, by March 27, 2020.
Assistance for Persons with Disabilities: Contact Ellen Hatleberg, phone 360-725-7444, email email@example.com, by March 24, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Technical changes to public works board Title 399 WAC for the broadband program.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Public works board, governmental.
Name of Agency Personnel Responsible for Drafting: Connie Rivera, 1011 Plum Street S.E., P.O. Box 42525, Olympia, WA 98504-2525, 360-725-3088; Implementation: Shelley Westall, 1011 Plum Street S.E., P.O. Box 42525, Olympia, WA 98504-2525, 360-725-3162; and Enforcement: Karin Berkholtz, 1011 Plum Street S.E., P.O. Box 42525, Olympia, WA 98504-2525, 360-725-3051.
The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. Minor administrative changes.
(1) 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.
(2)(a) 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.
(b) The board may choose to fund all or part of an application for funding, provided that the application meets the requirements of subsection (9) of this section.
(3) Eligible applicants for grants and loans awarded under this section include:
(a) Local governments;
(c) Nonprofit organizations;
(d) Cooperative associations;
(e) Multiparty entities comprised of public entity members;
(f) Limited liability corporations organized for the purpose of expanding broadband access; and
(g) Incorporated businesses or partnerships.
(4)(a) The board shall develop administrative procedures governing the application 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.
(b) At least sixty days prior to the first day applications 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.
(c) 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.
(d) The board must provide a method for the allocation of loans, grants, provision of technical assistance, and interest rates under this section.
(5) An applicant for a grant or loan under this section must provide the following information on the application:
(a) The location of the project;
(b) Evidence regarding the unserved nature of the community in which the project is to be located;
(c) Evidence that proposed infrastructure will be capable of scaling to greater download and upload speeds;
(d) 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;
(e) The estimated cost of retail services to end users facilitated by a project;
(f) The proposed actual download and upload speeds experienced by end users;
(g) Evidence of significant community institutions that will benefit from the proposed project;
(h) Anticipated economic, educational, health care, or public safety benefits created by the project;
(i) Evidence of community support for the project;
(j) 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;
(k) The estimated total cost of the project;
(l) Other sources of funding for the project that will supplement any grant or loan award;
(m) A demonstration of the project's long-term sustainability, including the applicant's financial soundness, organizational capacity, and technical expertise;
(n) A strategic plan to maintain long-term operation of the infrastructure;
(o) Evidence that no later than six weeks 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;
(p) If applicable, the broadband service providers' written responses to the inquiry made under (o) of this subsection; and
(q) Any additional information requested by the board.
(6)(a) Within thirty days of the close of the grant and loan application process, the board shall publish on its website the proposed geographic broadband service area and the proposed broadband speeds for each application submitted.
(b) Any existing broadband service provider near the proposed project area may, within thirty days of publication of the information under (a) of this subsection, submit in writing to the board an objection to an application. An objection must contain information demonstrating that:
(i) 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 state speed goals contained in RCW 43.330.536
(ii) 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 state speed goals contained in RCW 43.330.536
, no later than twenty-four months after the date awards are made under this section for the grant and loan cycle under which the application was submitted.
(c) Objections submitted to the board under this subsection must be certified by affidavit.
(d) The board may evaluate the information submitted under this section by the objecting provider and must consider it in making a determination on the application 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 (b) 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.
(e) 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.
(f) 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.
(g) Confidential business and financial information submitted by an objecting provider under this subsection is exempt from disclosure under chapter 42.56
(7)(a) In evaluating applications and awarding funds, the board shall give priority to applications that are constructed in areas identified as unserved.
(b) In evaluating applications and awarding funds, the board may give priority to applications that:
(i) Provide assistance to public-private partnerships deploying broadband infrastructure from areas currently served with broadband service to areas currently lacking access to broadband services;
(ii) Demonstrate project readiness to proceed;
(iii) 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;
(iv) 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;
(v) Bring broadband service to tribal lands, particularly to rural and remote tribal lands or areas servicing rural and remote tribal entities;
(vi) 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;
(vii) Serve economically distressed areas of the state as the term "distressed area" is defined in RCW 43.168.020
(viii) 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;
(x) Provide technical support and train residents, businesses, and institutions in the community served by the project to utilize broadband service;
(xi) Include a component to actively promote the adoption of newly available broadband services in the community;
(xii) Provide evidence of strong support for the project from citizens, government, businesses, and community institutions;
(xiii) Provide access to broadband service to a greater number of unserved households and businesses, including farms;
(xiv) Utilize equipment and technology demonstrating greater longevity of service;
(xv) 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;
(xvi) Include evidence of a customer service plan;
(xvii) Consider leveraging existing broadband infrastructure and other unique solutions;
(xviii) Benefit public safety and fire preparedness; or
(xix) Demonstrate other priorities as the board, in collaboration with the office, may prescribe by rule.
(c) The board shall endeavor to award funds under this section to qualified applicants in all regions of the state.
(d) The board shall consider affordability and quality of service to end users in making a determination on any application.
(e) The board, in collaboration with the office, may develop additional rules for eligibility, project applications, the associated objection process, and funding priority, as provided under this subsection and subsections (3), (5), and (6) of this section.
(f) 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.
(8) 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.
(9)(a) 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.
(b) 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.
(c) 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.
(10) Prior to awarding funds under this section, the board must consult with the Washington utilities and transportation commission. The commission must provide to the board an assessment of the technical feasibility of a proposed application. The board must consider the commission's assessment as part of its evaluation of a proposed application.
(11) 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.
(12) 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.
(13) The definitions in RCW 43.330.530
apply throughout this section unless the context clearly requires otherwise.