47 U.S.C. § 1741 — Enabling middle mile broadband infrastructure
submitted 5 years ago by Pub. L. 117-58 to r/title-47-TELECOMMUNICATIONS · 2,585 words · no verdicts yet
This section creates a competitive, technology-neutral grant program for middle-mile broadband infrastructure and sets eligibility, mapping, interconnection, accountability, Tribal, funding-share, and appropriation rules. It authorizes $1 billion for fiscal years 2022 through 2026.
(a) Definitions.—(1) “Anchor institution” means a school, library, medical or health-care provider, community college or other higher-education institution, or other community-support organization or entity. (2) “Assistant Secretary” means the Assistant Secretary of Commerce for Communications and Information. (3) “Commission” means the Federal Communications Commission. (4) “Eligible entity” means a State, State political subdivision, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company or cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning counsel, Native entity, or economic development authority, or a partnership of two or more of them. (5) “FCC fixed broadband map” means the Commission map under section 642(c)(1)(B) of this title. (6) “Indian Tribe” has the meaning in section 5304 of title 25. (7) “Interconnect” means physically linking two networks so they mutually exchange traffic on nondiscriminatory terms. (8) “Internet exchange facility” means infrastructure through which internet providers and content-delivery networks exchange traffic. (9) “Middle mile infrastructure” means broadband infrastructure that does not directly connect to an end-user location, including an anchor institution. It includes leased dark fiber, interoffice transport, backhaul, carrier-neutral internet exchanges, carrier-neutral submarine cable landing stations, undersea cables, data-center transport connectivity, special-access transport, similar services, and wired or private-wireless infrastructure such as microwave capacity, tower access, towers, fiber, and microwave links. (10) “Middle mile grant” means a grant under (c). (11) “Native entity” means an Indian Tribe, Alaska Native Corporation, Native Hawaiian organization (as defined in section 7517 of title 20), Department of Hawaiian Home Lands, or Office of Hawaiian Affairs. (12) “State” has the meaning in section 153 of this title. (13) “Submarine cable landing station” means a cable landing station described in 47 C.F.R. 1.767(a)(5), or a successor rule, usable to land a submarine cable by an entity licensed under the Cable Landing Licensing Act. (14) “Tribal government” means the recognized governing body of an Indian or Alaska Native tribe or other listed tribal entity identified in the most recent list published as of November 15, 2021, under section 5131 of title 25. (15) “Trust land” has the meaning in section 3765 of title 38. (16) “Underserved” means an area designated as Tribally underserved under (g), or an area no larger than a Commission-established census block that is not unserved and lacks, according to the FCC map, broadband of at least 100 Mbps download and 20 Mbps upload, or lacks higher Commission benchmarks established after November 15, 2021. (17) “Unserved” means an area designated as Tribally underserved under (g), or an area no larger than a Commission-established census block that lacks, according to the FCC map, broadband of at least 25 Mbps download and 3 Mbps upload, or lacks higher Commission benchmarks established after November 15, 2021.
(b) Purpose; sense of Congress.—(1) The purposes are to expand and extend middle-mile infrastructure to lower the cost of connecting unserved and underserved areas to the internet backbone, commonly called the “last mile,” and to make connections more resilient by creating alternative paths that can prevent single points of failure. (2) Congress states that the Assistant Secretary should prioritize projects using existing rights-of-way, assets, and infrastructure to reduce financial, regulatory, and permitting problems; projects routing infrastructure to connect unserved anchor institutions, including Tribal ones; projects supporting carrier-neutral interconnection facilities; and projects improving existing redundancy and resilience or reducing regulatory and permitting barriers to new construction. A regulated utility should use grant funds in addition to its core capital plan to increase middle-mile resilience or redundancy, or connect unserved and underserved areas in its service territory and nearby communities.
(c) Grants.—The Assistant Secretary must establish a technology-neutral, competitive program awarding eligible entities grants to construct, improve, or acquire middle-mile infrastructure.
(d) Applications.—(1) The Assistant Secretary must establish an application process under this subsection. (2) Priority goes to an applicant satisfying at least two of these conditions: (A) fiscally sustainable middle-mile strategies; (B) a commitment to nondiscriminatory interconnection for terrestrial and wireless last-mile providers and any bona fide requester; (C) identified providers with written interest in interconnecting and sustainable plans or adequate funding; (D) supplemental investments or in-kind support, such as waived franchise or permit fees, speeding completion; or (E) demonstrated benefit to United States and Defense Department national-security interests. (3) The process must require evidence that the applicant can competently perform the project, including financial, technical, and operational ability to build it and operate the resulting network.
(e) Eligibility.—(1) An applicant must agree to prioritize connecting middle-mile infrastructure to last-mile networks serving or planning to serve households in unserved areas, connecting noncontiguous trust lands, or offering wholesale broadband at reasonable carrier-neutral rates. (2) Subject to (5), it must agree to complete the buildout within five years after grant money becomes available. (3)(A) A project qualifies if, when applying, the Assistant Secretary determines the proposed network can support retail broadband. (B)(i) For mapping coverage gaps, a recipient building terrestrial or fixed-wireless middle mile must use the newest available data from the FCC map, the relevant State or Tribal government, or speed-and-usage surveys showing more than 25 percent of respondents have speeds below the unserved standard and conducted by the eligible entity, relevant State, or relevant Tribal government. (ii)(I) “Covered recipient” means the Assistant Secretary, Commission, relevant Tribal government when applicable, and the relevant State broadband office. (II) Subject to (III) and (IV), a recipient must share with each covered recipient the locations of all middle-mile infrastructure. (III) It must use a uniform format set by the Assistant Secretary. (IV) The information may be used only to run the grant program and related reporting. A covered recipient may receive it only after agreeing in writing to assert every available legal defense against disclosure under Federal, State, or local public-disclosure law. This does not waive Tribal sovereign immunity. (C) As far as feasible, a fiber-optic recipient must ensure capacity for an anchor institution at least 1 Gbps download and 1 Gbps upload and include direct interconnect facilities for anchor institutions within 1,000 feet. (D)(i) A fiber-optic recipient must offer interconnection forever, when technically feasible without exceeding current or reasonably expected capacity, on reasonable rates and terms negotiated with requesters. (ii) It includes public-internet connection and physical traffic exchange. (iii) The applicant must disclose proposed interconnection, nondiscrimination, and network-management practices. (4) The Assistant Secretary must establish transparency, accountability, reporting, and oversight sufficient to deter waste, fraud, and abuse, plus interim buildout requirements requiring a percentage of project miles by a stated date and penalties, possibly rescinding funds, for failure to meet them or the five-year deadline. (5)(A) On request, the Assistant Secretary may extend the deadline by up to one year if the entity certifies it has a grant-use plan, the project is underway, or extraordinary circumstances require more time. (B) If extended, the Assistant Secretary must modify interim requirements as needed.
(f) Federal share.—A grant may not exceed 70 percent of total project cost.
(g) Tribal governments.—(1) After consulting Tribal governments and Native entities, the Assistant Secretary may waive or set alternative requirements for (c) through (f) if needed for effective Tribal grant delivery and administration or for construction, improvement, or acquisition on trust land. (2) After that consultation, the Assistant Secretary must create a process to designate Tribally unserved and Tribally underserved areas.
(h) Appropriations.—$1,000,000,000 is authorized for fiscal years 2022 through 2026 to carry out this section.
In this section:
The term “anchor institution” means a school, library, medical or healthcare provider, community college or other institution of higher education, or other community support organization or entity.
The term “Assistant Secretary” means the Assistant Secretary of Commerce for Communications and Information.
The term “Commission” means the Federal Communications Commission.
The term “eligible entity” means—
a State, political subdivision of a State, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company, telecommunications cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning counsel, Native entity, or economic development authority; or
a partnership of 2 or more entities described in subparagraph (A).
The term “FCC fixed broadband map” means the map created by the Commission under section 642(c)(1)(B) of this title.
The term “interconnect” means the physical linking of 2 networks for the mutual exchange of traffic on non-discriminatory terms and conditions.
The term “internet exchange facility” means physical infrastructure through which internet service providers and content delivery networks exchange internet traffic between their networks.
The term “middle mile infrastructure”—
means any broadband infrastructure that does not connect directly to an end-user location, including an anchor institution; and
includes—
leased dark fiber, interoffice transport, backhaul, carrier-neutral internet exchange facilities, carrier-neutral submarine cable landing stations, undersea cables, transport connectivity to data centers, special access transport, and other similar services; and
wired or private wireless broadband infrastructure, including microwave capacity, radio tower access, and other services or infrastructure for a private wireless broadband network, such as towers, fiber, and microwave links.
The term “middle mile grant” means a grant awarded under subsection (c).
The term “Native entity” means—
an Indian Tribe;
an Alaska Native Corporation;
a Native Hawaiian organization (as defined in section 7517 of title 20;
the Department of Hawaiian Home Lands; and
the Office of Hawaiian Affairs.
The term “submarine cable landing station” means a cable landing station, as that term is used in section 1.767(a)(5) of title 47, Code of Federal Regulations (or any successor regulation), that can be utilized to land a submarine cable by an entity that has obtained a license under the first section of the Act entitled “An Act relating to the landing and operation of submarine cables in the United States”, approved May 27, 1921 (47 U.S.C. 34) (commonly known as the “Cable Landing Licensing Act”).
The term “Tribal government” means the recognized governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including parenthetically) in the list published most recently as of November 15, 2021, pursuant to section 5131 of title 25.
The term “underserved”, with respect to an area, means an area—
that is designated as a Tribally underserved area through the process described in subsection (g); or
that—
is of a standard size not larger than a census block, as established by the Commission;
is not an unserved area; and
as determined in accordance with the FCC fixed broadband map, does not have access to broadband service with—
except as provided in subclause (II)—
a download speed of not less than 100 megabits per second; and
an upload speed of not less than 20 megabits per second; or
minimum download and upload speeds established as benchmarks by the Commission for purposes of this Act after November 15, 2021, if those minimum speeds are higher than the minimum speeds required under subclause (I).
The term “unserved”, with respect to an area, means an area—
that is designated as a Tribally underserved area through the process described in subsection (g); or
that—
is of a standard size not larger than a census block, as established by the Commission; and
as determined in accordance with the FCC fixed broadband map, does not have access to broadband service with—
except as provided in subclause (II)—
a download speed of not less than 25 megabits per second; and
an upload speed of not less than 3 megabits per second; or
minimum download and upload speeds established as benchmarks by the Commission for purposes of this Act after November 15, 2021, if those minimum speeds are higher than the minimum speeds required under subclause (I).
The purposes of this section are—
to encourage the expansion and extension of middle mile infrastructure to reduce the cost of connecting unserved and underserved areas to the backbone of the internet (commonly referred to as the “last mile”); and
to promote broadband connection resiliency through the creation of alternative network connection paths that can be designed to prevent single points of failure on a broadband network.
It is the sense of Congress that—
in awarding middle mile grants, the Assistant Secretary should give priority to—
projects that leverage existing rights-of-way, assets, and infrastructure to minimize financial, regulatory, and permitting challenges;
projects in which the eligible entity designs the route of the middle mile infrastructure to enable the connection of unserved anchor institutions, including Tribal anchor institutions; and
projects that facilitate the development of carrier-neutral interconnection facilities; and
projects that—
improve the redundancy and resiliency of existing middle mile infrastructure; and
reduce regulatory and permitting barriers to promote the construction of new middle mile infrastructure; and
a regulated utility should use funds received from a middle mile grant as a supplement to the core utility capital investment plan of the regulated utility to—
facilitate increased broadband resiliency or redundancy of existing middle mile infrastructure; or
provide connectivity to unserved areas and underserved areas within the service territory of the utility and nearby communities.
The Assistant Secretary shall establish a program under which the Assistant Secretary makes grants on a technology-neutral, competitive basis to eligible entities for the construction, improvement, or acquisition of middle mile infrastructure.
The Assistant Secretary shall establish an application process for middle mile grants in accordance with this subsection.
In establishing an application process for middle mile grants under paragraph (1), the Assistant Secretary shall give priority to an application from an eligible entity that satisfies 2 or more of the following conditions:
The eligible entity adopts fiscally sustainable middle mile strategies.
The eligible entity commits to offering non-discriminatory interconnect to terrestrial and wireless last mile broadband providers and any other party making a bona fide request.
The eligible entity identifies specific terrestrial and wireless last mile broadband providers that have—
expressed written interest in interconnecting with middle mile infrastructure planned to be deployed by the eligible entity; and
demonstrated sustainable business plans or adequate funding sources with respect to the interconnect described in clause (i).
The eligible entity has identified supplemental investments or in-kind support (such as waived franchise or permitting fees) that will accelerate the completion of the planned project.
The eligible entity has demonstrated that the middle mile infrastructure will benefit national security interests of the United States and the Department of Defense.
The Assistant Secretary shall include in the application process established under paragraph (1) a requirement that an eligible entity provide evidence that the eligible entity is capable of carrying out a proposed project in a competent manner, including by demonstrating that the eligible entity has the financial, technical, and operational capability to carry out the proposed project and operate the resulting middle mile broadband network.
To be eligible to obtain a middle mile grant, an eligible entity shall agree, in the application submitted through the process established under subsection (d), to prioritize—
connecting middle mile infrastructure to last mile networks that provide or plan to provide broadband service to households in unserved areas;
connecting non-contiguous trust lands; or
the offering of wholesale broadband service at reasonable rates on a carrier-neutral basis.
Subject to paragraph (5), to be eligible to obtain a middle mile grant, an eligible entity shall agree, in the application submitted through the process established under subsection (d), to complete buildout of the middle mile infrastructure described in the application by not later than 5 years after the date on which amounts from the grant are made available to the eligible entity.
A project shall be eligible for a middle mile grant if, at the time of the application, the Assistant Secretary determines that the proposed middle mile broadband network will be capable of supporting retail broadband service.
In mapping out gaps in broadband coverage, an eligible entity that uses a middle mile grant to build out terrestrial or fixed wireless middle mile infrastructure shall use the most recent broadband mapping data available from one of the following sources:
The FCC fixed broadband map.
The State in which the area that will be served by the middle mile infrastructure is located, or the Tribal government with jurisdiction over the area that will be served by the middle mile infrastructure (if applicable).
Speed and usage surveys of existing broadband service that—
demonstrate that more than 25 percent of the respondents display a broadband service speed that is slower than the speeds required for an area to qualify as unserved; and
are conducted by—
the eligible entity;
the State in which the area that will be served by the middle mile infrastructure is located; or
the Tribal government with jurisdiction over the area that will be served by the middle mile infrastructure (if applicable).
In this clause, the term “covered recipient”, with respect to an eligible entity, means—
the Assistant Secretary;
the Commission;
the Tribal government with jurisdiction over the area that will be served by the middle mile infrastructure (if applicable); and
the State broadband office for the State in which the area that will be served by the middle mile infrastructure is located.
Subject to subclauses (III) and (IV), an eligible entity that constructs, improves, or acquires middle mile infrastructure using a middle mile grant shall share with each covered recipient the location of all the middle mile broadband infrastructure.
An eligible entity shall provide the information required under subclause (II) to each covered recipient in a uniform format determined by the Assistant Secretary.
The information provided by an eligible entity under subclause (II) may only be used for purposes of carrying out the grant program under subsection (c) and any reporting related thereto.
A covered recipient may not receive information under subclause (II) unless the covered recipient agrees in writing to assert all available legal defenses to the disclosure of the information if a person or entity seeks disclosure from the covered recipient under any Federal, State, or local public disclosure law.
Nothing in subitem (AA) is intended to be or shall be construed as a waiver of Tribal sovereign immunity.
To the extent feasible, an eligible entity that receives a middle mile grant to build middle mile infrastructure using fiber optic technology shall—
ensure that the proposed middle mile broadband network will be capable of providing broadband to an anchor institution at a speed of not less than—
1 gigabit per second for downloads; and
1 gigabit per second for uploads to an anchor institution; and
include direct interconnect facilities that will facilitate the provision of broadband service to anchor institutions located within 1,000 feet of the middle mile infrastructure.
An eligible entity that receives a middle mile grant to build a middle mile project using fiber optic technology shall offer interconnection in perpetuity, where technically feasible without exceeding current or reasonably anticipated capacity limitations, on reasonable rates and terms to be negotiated with requesting parties.
The interconnection required to be offered under clause (i) includes both the ability to connect to the public internet and physical interconnection for the exchange of traffic.
An applicant for a middle mile grant shall disclose the applicant’s proposed interconnection, nondiscrimination, and network management practices in the application submitted through the process established under subsection (d).
The Assistant Secretary shall—
establish sufficient transparency, accountability, reporting, and oversight measures for the grant program established under subsection (c) to deter waste, fraud, and abuse of program funds; and
establish—
buildout requirements for each eligible entity that receives a middle mile grant, which shall require the completion of a certain percentage of project miles by a certain date; and
penalties, which may include rescission of funds, for grantees that do not meet requirements described in clause (i) or the deadline under paragraph (2).
At the request of an eligible entity, the Assistant Secretary may extend the buildout deadline under paragraph (2) by not more than 1 year if the eligible entity certifies that—
the eligible entity has a plan for use of the middle mile grant;
the project to build out middle mile infrastructure is underway; or
extenuating circumstances require an extension of time to allow completion of the project to build out middle mile infrastructure.
If the Assistant Secretary grants an extension under subparagraph (A), the Assistant Secretary shall modify any buildout requirements established under paragraph (4)(B)(i) as necessary.
The amount of a middle mile grant awarded to an eligible entity may not exceed 70 percent of the total project cost.
The Assistant Secretary, in consultation with Tribal governments and Native entities, may waive, or specify alternative requirements for, any provision of subsections (c) through (f) if the Assistant Secretary finds that the waiver or alternative requirement is necessary—
for the effective delivery and administration of middle mile grants to Tribal governments; or
the construction, improvement, or acquisition of middle mile infrastructure on trust land.
The Assistant Secretary, in consultation with Tribal governments and Native entities, shall develop a process for designating Tribally unserved areas and Tribally underserved areas for purposes of this section.
There is authorized to be appropriated to carry out this section $1,000,000,000 for fiscal years 2022 through 2026.
Source credit: (Pub. L. 117–58, div. F, title IV, § 60401, Nov. 15, 2021, 135 Stat. 1231.)
- 2021Enacted · Pub. L. 117-58 · 135 Stat. 1231
A history note hasn’t been published yet. The record shows enactment by Pub. L. 117-58 on 2021-11-15.
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