Arkansas Administrative Code › Agency 003 - DEPARTMENT OF COMMERCE › Division 25 - Arkansas Broadband Office › Rule 003.25.22-001 - Addendum 2 to Arkansas Rural Connect- ARPA

Current through Register Vol. 49, No. 6, June, 2024
SECTION 1.
BACKGROUND
The Director of the Arkansas Economic Development Commission
				("Director") issues this Rule to respond to urgent, telecommunication needs in
				this State for communities impacted by the COVID-19 pandemic. On or about
				February 21, 2020, the Director issued the Arkansas Rural Connect Broadband
				Rule (hereafter, the "Broadband Rule") to implement the Arkansas Rural Connect
				Program (hereafter, "Arkansas Rural Connect," or "Arkansas Rural Connect
				Program," or "ARC"). This Broadband Rule was promulgated prior to the issuance
				of State and Federal public health guidelines responding to the COVID-19
				pandemic.
The COVID-19 pandemic has severely impacted the citizens of
				this State. COVID-19 has brought about an urgent and immediate need for
				broadband internet access. Broadband enables workers to telework, patients to
				use telemedicine services, K-12 and college students and unemployed workers in
				need of reskilling to participate in distance education, religious people to
				participate in online worship services, and all citizens to shop online,
				interact with friends through Skype and other video chat tools, and keep up
				with the latest news and public health guidelines.
In response to the pandemic, Arkansas has received federal
				funds under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act),
				and the American Rescue Plan Act (ARPA). These funds allowed states to broaden
				and strengthen their broadband infrastructure in unserved or underserved areas.
				All ARPA funds must be obligated by December 31, 2024. The period of
				performance will run until December 31, 2026.
The need still exists for broadband infrastructures that
				directly enable work, education and health monitoring in response to the
				effects of COVID-19. ARPA federal guidance was modified April 1, 2022, adding
				significant requirements. The AEDC Broadband Office is modifying its rule
				through this addendum to harmonize with the changed federal guidance.
The Arkansas Rural Connect program promotes broadband
				deployment in rural areas of Arkansas that lack meaningful and efficient
				broadband services. The ARC program and its purposes align with allowable uses
				of ARPA funds.
Due to the urgent need for broadband for distance learning,
				telemedicine and the need for telework necessitated by the COVID-19 pandemic,
				there is a need to issue this new ARPA rule to disburse funds immediately and
				to accelerate the continued deployment of broadband network
				infrastructure.
Additionally, on April 18, 2022, the Arkansas Broadband Master
				Plan: Assessment and Recommendations (the "Broadband Master Plan") was
				published by Broadband Development Group pursuant to a study commissioned by
				the AEDC Broadband Office and requested by the Arkansas General Assembly.
				Changes to the rule also incorporate recommendations made by the Broadband
				Master Plan.
SECTION 2.
AUTHORITY
This Rule is authorized to be issued by the Director of the
				Arkansas Economic Development Commission ("AEDC") under Ark. Code Ann. §
									15-4-209(b)
				(5) which provides that AEDC may promulgate
				rules necessary to implement the programs and services offered by AEDC. On or
				about August 9, 2019, Governor Asa Hutchinson authorized a transfer of funding
				for the implementation and administration of the ARC Program to AEDC. Pursuant
				to Ark. Code Ann. §
									15-4-209(a)(1),
				AEDC is authorized to administer grants to assist with the economic development
				in the State. AEDC is therefore authorized to administer the ARC grant program
				and further authorized to issue administrative rules under Ark. Code Ann.
				§
									15-4-209(b)
				(5).
SECTION 3.
PURPOSE AND QUALIFICATION
			 FOR RECEIVING ARPA FUNDS
This purpose of this addendum is to harmonize with recent
				federal guidance as it relates to dispensing ARPA funds for the expansion of
				broadband network infrastructure for the unserved and underserved areas of
				Arkansas. Unserved and underserved areas are locations without access to a
				reliable wireline connection of 100Mbps/ 20Mbps. All ARPA approved projects
				must be able to provide synchronous bandwidths of 100mbps download and 100mbps
				upload. Where impractical, due to geographical, topographical or financial
				constraints the upload speed can be as low as 20mbps but must be scalable to
				100mbps in such instances. Whenever bandwidths are asynchronous, the internet
				service provider ("ISP") must submit a letter detailing why the upload speeds
				cannot be obtained at 100mbps and the Department of Commerce AEDC Broadband
				Office ("AEDC Broadband Office") will determine if the ISP letter is approved
				for the requested bandwidth modification.
Priority will be given to fiber-optic infrastructures where
				feasible, as such advanced technology better supports scalability to meet
				expected increases in bandwidth demand. Regardless of technology infrastructure
				deployed, the ISP must demonstrate that it will reliably deliver a minimum of
				100/20mbps service throughout the service area. The ARPA program also requires
				the ISP to submit its customer pricing list with its project application. The
				ISP is also required to participate in the FCC's Affordable Connectivity
				Program. As indicated below, affordability of broadband service will be a
				significant factor in determining grant awards. Applications that include at
				least one low-cost option (less than $50 per month), at speeds of at least
				100/20 mbps, without data usage caps or the obligation to purchase bundled
				services, will be awarded extra points in the scoring rubric. Applicants must
				include with their application a narrative demonstrating that their proposed
				pricing is affordable for consumers in the proposed project service
				area.
The AEDC Broadband Office, or its designee, will define project
				areas available for grant awards and deadlines for submitting applications.
				Each project area will be comprised of census block groups identified as
				unserved and underserved areas in the Broadband Master Plan. It is anticipated
				that multiple applicants will submit applications for each project area.
All applicants must have a System for Award Management (SAM)
				number issued by the federal government to participate in the ARC program. ISPs
				must submit with their applications audited financial statements made by an
				independent certified public accountant for the past two years, along with the
				endorsement of the application by each mayor or county judge within the
				proposed project area. It is expected that each mayor and county judge may
				endorse multiple applications. Each project will be scored using 8 different
				scoring metrics: 1.) speed of service (10% of total score), 2.) future-proof
				(10% of total score), 3.) quality of coverage, i.e. reliability and scalability
				of service (15% of total score), 4.) time to deploy (15% of total score), 5.)
				qualifications/experience/financial strength of applicant (10% of total score),
				6.) applicant's contribution toward project costs (10% of score), 7.) cost of
				project (15% of total score), and 8.) affordability of service to the consumer
				(15% of total score). The maximum score for this rubric is 100 points. All
				projects will be scored individually, with the highest scored applications
				receiving ARC grant funding awards. There is no minimum or maximum limit on
				project size or dollar amount requested for ARC grant program applications. But
				overall project cost is a key factor of consideration. Where there is a tie for
				project awards the AEDC Broadband Office, or its' designee, will make an
				administrative decision as to which project it will award. The AEDC Broadband
				Office, or its' designee, will consider the scores for the most important
				factors such as project price, quality of service, deployment timeline and
				affordability of service to the consumer to break ties. Next, if the tie is not
				resolved, the AEDC Broadband Office, or its designee, will consider the Mayor
				and County Judge project preferences and customer service complaints made to
				the AEDC Broadband Office, or its designee. Please keep in mind that verified
				customer complaints, depending on nature or frequency, from prior or present
				ARC projects could result in an application not being awarded an ARC grant no
				matter the project score. This is also true if the AEDC Broadband Office learns
				of verified complaints from customers from an ISPs pre-existing network(s). All
				projects for application submissions will be subject to a challenge process.
See Section 8
.
Qualified project areas subject to ARC grant funding must not
				have a federal commitment, i.e., a grant from the Rural Digital Opportunity
				Fund that will provide a reliable wireline connection of at least 100/20 Mbps.
				Each ISP applicant receiving a grant using ARPA funds will guarantee broadband
				service to the citizens of Arkansas, within its project footprint, for a
				minimum of 10 years from the time of completed infrastructure deployment. Grant
				awardees who fail to reliably deliver service within the project footprint for
				the required 10-year period will be subject to the penalty provisions of
				Arkansas Rural Connect Broadband Grant Program Rule.
SECTION 4.
PROJECT FUNDING
The AEDC Broadband Office will fund up to 75% percent of the
				total cost of the project. The applicant shall fund a minimum of 25% of the
				project costs. Internet service providers shall maintain an irrevocable standby
				letter of credit equal to 100% of the grant award amounts disbursed to the
				internet service provider. The irrevocable standby letter of credit shall
				follow the same standards found in
				47 C.F.R. §
										54.804(c)(2) and will be
				accompanied by an opinion letter from applicant's legal counsel stating that
				the irrevocable standby letter of credit and its proceeds will notbe subject to
				a Chapter 11 bankruptcy proceeding. The AEDC Broadband Office may allow the
				letter of credit amount to be reduced to no less than 25% of the grant award as
				the project progresses and defined milestones in the project deployment plan
				are met. The letter of credit must remain in place until the project is
				completed and acceptance testing by the Broadband Office is satisfactorily
				concluded. Please note, the AEDC Broadband Office, or its' designee, reserves
				the right to stop funding should it learn that grantee's vendors or
				subcontractors are not getting paid for work performed on ARC projects. Funding
				will resume when the AEDC Broadband Office, or its' designee, is satisfied the
				matter has been resolved.
SECTION
			 5.
DEADLINES, UNSERVED AND UNDERSERVED AREAS
ARPA funds must be obligated by December 31, 2024, and all
				broadband network deployments completed by December 31, 2026. The AEDC
				Broadband Office will determine the dates by which awarded projects shall be
				completed within these allowed deadlines.
SECTION 6.
MAPS AND RULE
			 OBLIGATIONS
The AEDC Broadband Office, at its discretion, may request from
				the applicants maps and other information necessary to make informed decisions
				as to the proper unserved or underserved locations in Arkansas to expend grant
				funds. Applicants that accept funding under this Rule shall follow all the
				requirements under the State and Local Fiscal Recovery Fund Guidance and ARC
				rules. Every applicant is responsible for knowing both the state rules and
				federal guidelines without exception. In the event of any conflict between this
				rule and the federal rules and guidance applicable to broadband deployments
				funded with ARPA funds, the federal rules and guidance will control.
SECTION 7.
EFFECTIVE DATE;
			 COORDINATION WITH ARC GRANT PROGRAM RULE
This Emergency Rule is effective two days after review and
				approval by the Executive Subcommittee of the Arkansas Legislative Council. The
				Rule is incorporated into and made a part of the Arkansas Rural Connect
				Broadband Grant Program Rule, as amended effective February 7, 2022. In the
				event of any conflict between the terms of this Emergency Rule and Arkansas
				Rural Connect Broadband Grant Program Rule, the terms of this Emergency Rule
				shall control.
SECTION 8.
ARKANSAS RURAL CONNECT REQUEST FOR PROJECT CHALLENGE INFORMATION
Definitions.
The following definitions were added:
Point Shapefiles
- shapefiles that show each
				proposed passing in the application area as a singular mapped point, in the
				application or challenged area containing attribute data showing the addresses
				of each point.
Polygon Shapefiles
- shapefiles delineating the
				general project area(s).
RSSI
- Received Signal Strength Indicator
				("RSSI"), is an estimated measure of power level that a wireless client device
				is receiving from an access point or router.
Challengers
- A unit of local government, a
				nonprofit organization, or Broadband Service Provider ("ISP").
Project Challenge Information Request
				Process
The purpose of this process is to ensure the Arkansas Economic
				Development Commission Broadband Office ("AEDC Broadband Office"), or its'
				designee, select the best projects that truly bridge the digital divide in
				Arkansas. This process is to gather additional information before making a
				final award. To streamline this process, challengers must provide point and
				polygon shapefiles as defined in this document. All shapefiles or KMZs must be
				functional. In addition, if someone submits information regarding a wireless
				project, the challenger is required to include shapefiles of heat maps
				indicating RSSI measures in the challenged area. The AEDC Broadband Office, or
				its' designee, may, at its' discretion, require any other kind of file to
				complete its' analysis.
Planned service to a proposed project area is eligible for the
				purpose of a submission to the AEDC Broadband Office, or its' designee, if
				state or federal funds have been awarded or private funds will be used within a
				reasonable period of time. Additionally, the provider must be committed to
				providing service to the areas using private, state or federal funds. Areas
				adjacent to private, state or federally funded areas may be eligible to submit
				information to the AEDC Broadband Office, or its' designee, if the challenger
				demonstrates, to AEDC's Broadband Office or to its designee's satisfaction,
				existing awards or a self-funded project will cover the adjacent area. The
				challenger must commit to serving the adjacent areas, in writing, at speeds
				100mbps/100mbps symmetrical. The challenger may be required to enter into a
				written agreement with the state to complete the adjacent project within a
				certain time frame. The state will not issue awards in the adjacent area as
				consideration for the agreement.
The AEDC Broadband Office recognizes the nature of wireless
				projects has an inherent potential for overlap. Recognizing the unique
				circumstances of this technology, wireless projects will be allowed to exceed
				the 25% overlap allowance of existing networks, provided the wireless signal
				strength, measured in RSSI, is less than -90 in those areas. It is the
				determination of the AEDC Broadband Office that RSSI measures below -90 are
				unable to reliably deliver broadband. AEDC Broadband Office, or its' designee,
				will post ARC projects, for challenges, fifteen business days following the
				announcement of the challenge information request. The announcement will be on
				the AEDC Broadband Office website or its' designee's website. Challengers
				wishing to submit information to the AEDC Broadband Office, or its' designee,
				must provide the required information, in this section, no later than 5:00
				p.m., 20 business days after posting ARC projects - no exceptions.
Providers wishing to submit information to the AEDC Broadband
				Office, or its' designee, on multiple applications must submit information
				separately for each application. Challengers can submit information to the AEDC
				Broadband Office, or its' designee, concerning portions of a proposed project
				area without invalidating the entire project. AEDC Broadband Office, or its'
				designee, reserves the right to invalidate a portion(s) of a proposed project
				area, aggregate challenges by different providers to determine the percentage
				of serviceable units served in a proposed project area and invalidate
				insufficient submissions. Challengers must demonstrate that more than 10%, for
				wireline projects, or 25%, for wireless projects, of serviceable units in the
				project area have access to speeds at or above 100/20 mbps as of the date of
				the application or that the application is ineligible because of committed
				state or federal funding subject to the conditions described above. These
				percentages may be changed, by the AEDC Broadband Office, or its' designee,
				based on the funding source and federal guidance.
AEDC Broadband Office, or its designee, must receive all the
				information detailed below or the submission will be deemed incomplete and
				invalid. Challengers must provide:
1.
			 A signed, and notarized affidavit affirming the attached information is
			 true.
2. Current Federal
			 Communications Commission (FCC) Form 477 or equivalent.
3. Minimum/maximum speeds available for
			 residents and businesses in the proposed project area.
4. Number of serviceable units within the
			 proposed project area. Provide the speeds those serviceable units can receive,
			 including the technology, i.e., fiber, fixed wireless, etc.
5. Street level data of customers receiving
			 service within the proposed project area.
6. Point shapefiles that show each proposed
			 passing in the questioned area, designated by a singular mapped point, in the
			 questioned area containing attribute data showing the addresses of each point.
			 Polygon shapefiles delineating the area(s) of concern.
7. For wireless providers: Heat maps
			 indicating RSSI in the challenged area.
8. Using the project area map submitted by
			 the applicant, create a map indicating where the challenger's serviceable units
			 are in the proposed project area. Challengers are encouraged to submit
			 additional maps and information if necessary.
9. If submitting due to planned private,
			 state or federal funding, documentation detailing commitment to provide service
			 in or adjacent to the proposed project area is required.
AEDC Broadband Office, or its' designee, reserves the right to
				request verified speed tests on all or portion(s) of the questioned area. The
				AEDC Broadband Office, or its' designee reserves the right to require any
				awardee to re-scope their ARC application/project footprint and amend funding
				request post award. The AEDC Broadband Office, or its' designee, may also
				require any applicant to alter its' project and funding request if it is in the
				best interest of the state. After all information have been submitted and
				reviewed, the AEDC Broadband Office or its' designee will evaluate the
				additional information to determine if it will let the project footprint stand,
				be altered, or be removed. The AEDC Broadband Office or its' designee, after
				administrative review, will post the final project areas for application
				submissions no later than 5:00pm two weeks after all information has been
				evaluated. Due to the volume of applications and submissions there can be
				necessary delays to this timeline.
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Addendum 2 to Arkansas Rural Connect - ARPA Emergency
				Rule
EXECUTIVE SUMMARY
Purpose and Emergency Need
The Arkansas Broadband Office has promulgated an emergency rule
				as an addendum to the Arkansas Rural Connect Broadband Grant Program (ARC). The
				purpose of the rule is to incorporate recent federal guidance as it relates to
				dispensing ARPA funds for the expansion of broadband network infrastructure in
				rural unserved and underserved areas. Additionally, the rule incorporates
				recommendations published in the Arkansas Broadband Master Plan commissioned by
				the Broadband Office and requested by the Arkansas General Assembly. Due to the
				urgent need for broadband for distance learning, telemedicine, and telework,
				necessitated by the COVID-19 pandemic, this addendum to the ARC Program under
				emergency promulgation procedure is necessary for the critical deployment of a
				strong broadband network infrastructure in rural Arkansas.
Key points
* Projects will be awarded on a census block group
				basis;
* Each project is open to multiple bidders;
* Each project will be scored individually using a rubric
				evaluating 8 different scoring metrics.
* The Arkansas Broadband Office will specify how many census
				block groups are associated with each project;
* The rule outlines a process for Incumbent providers to
				challenge the inclusion of their existing service areas within a project
				footprint, if the existing service is at least 100/20 mbps;
* Project cost (materials and labor) must be shared up to 75%
				by the State and a minimum of 25% by the grantee;
* A Grantee must guarantee service availability within its
				footprint for a minimum 10 years from the time of completed infrastructure
				deployment;
* Build-out must be complete within at least 3 years following
				a grant award; and
* An internet service provider will obtain a required
				irrevocable standby letter of credit equal to 100% of the grant award amounts
				disbursed to the internet service provider. The letter of credit will be
				reduced to 25% of the grant amount once the network is built and acceptance
				testing is completed.
* The letter of credit shall remain in place until the project
				is completed and acceptance testing by the Broadband Office is satisfactorily
				concluded.
Effective date
The emergency rule is effective on July 21,
				2022.