Broadband Infrastructure Finance and Innovation Act of 2021

II 117TH CONGRESS 1ST SESSION S. 741 To establish a broadband infrastructure finance and innovation program to make available loans, loan guarantees, and lines of credit for the con- struction and deployment of broadband infrastructure, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 11, 2021 Mr. LUJA´N (for himself and Mr. PETERS) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To establish a broadband infrastructure finance and innova- tion program to make available loans, loan guarantees, and lines of credit for the construction and deployment of broadband infrastructure, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Broadband Infrastructure Finance and Innovation Act of 5 2021’’. 6 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 741 IS (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Determination of eligibility and project selection. Sec. 4. Secured loans. Sec. 5. Lines of credit. Sec. 6. Alternative prudential lending standards for small projects. Sec. 7. Program administration. Sec. 8. State and local permits. Sec. 9. Regulations. Sec. 10. Funding. Sec. 11. Reports to Congress. SEC. 2. DEFINITIONS. 3 In this Act: 4 (1) ASSISTANT SECRETARY.—The term ‘‘Assist- 5 ant Secretary’’ means the Assistant Secretary of 6 Commerce for Communications and Information. 7 (2) BIFIA PROGRAM.—The term ‘‘BIFIA pro- 8 gram’’ means the broadband infrastructure finance 9 and innovation program established under this Act. 10 (3) BROADBAND SERVICE.—The term 11 ‘‘broadband service’’— 12 (A) means broadband internet access serv- 13 ice that is a mass-market retail service, or a 14 service provided to an entity described in para- 15 graph (12)(B)(ii), by wire or radio that pro- 16 vides the capability to transmit data to and re- 17 ceive data from all or substantially all internet 18 endpoints, including any capabilities that are 19 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 741 IS incidental to and enable the operation of the 1 communications service; 2 (B) includes any service that is a func- 3 tional equivalent of the service described in sub- 4 paragraph (A); and 5 (C) does not include dial-up internet access 6 service. 7 (4) ELIGIBLE PROJECT COSTS.—The term ‘‘eli- 8 gible project costs’’ means amounts substantially all 9 of which are paid by, or for the account of, an obli- 10 gor in connection with a project, including the cost 11 of— 12 (A) development phase activities, including 13 planning, feasibility analysis, revenue fore- 14 casting, environmental review, historic preserva- 15 tion review, permitting, preliminary engineering 16 and design work, and other preconstruction ac- 17 tivities; 18 (B) construction and deployment phase ac- 19 tivities, including— 20 (i) construction, reconstruction, reha- 21 bilitation, replacement, and acquisition of 22 real property (including land relating to 23 the project and improvements to land), 24 equipment, instrumentation, networking 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 741 IS capability, hardware and software, and dig- 1 ital network technology; 2 (ii) environmental mitigation; and 3 (iii) construction contingencies; and 4 (C) capitalized interest necessary to meet 5 market requirements, reasonably required re- 6 serve funds, capital issuance expenses, and 7 other carrying costs during construction and 8 deployment. 9 (5) FEDERAL CREDIT INSTRUMENT.—The term 10 ‘‘Federal credit instrument’’ means a secured loan, 11 loan guarantee, or line of credit authorized to be 12 made available under the BIFIA program with re- 13 spect to a project. 14 (6) INVESTMENT-GRADE RATING.—The term 15 ‘‘investment-grade rating’’ means a rating of BBB 16 minus, Baa3, bbb minus, BBB (low), or higher as- 17 signed by a rating agency to project obligations. 18 (7) LENDER.—The term ‘‘lender’’ means any 19 non-Federal qualified institutional buyer (as defined 20 in section 230.144A(a) of title 17, Code of Federal 21 Regulations (or any successor regulation), known as 22 Rule 144A(a) of the Securities and Exchange Com- 23 mission and issued under the Securities Act of 1933 24 (15 U.S.C. 77a et seq.)), including— 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 741 IS (A) a qualified retirement plan (as defined 1 in section 4974(c) of the Internal Revenue Code 2 of 1986) that is a qualified institutional buyer; 3 and 4 (B) a governmental plan (as defined in 5 section 414(d) of the Internal Revenue Code of 6 1986) that is a qualified institutional buyer. 7 (8) LETTER OF INTEREST.—The term ‘‘letter 8 of interest’’ means a letter submitted by a potential 9 applicant prior to an application for credit assistance 10 in a format prescribed by the Assistant Secretary on 11 the website of the BIFIA program that— 12 (A) describes the project and the location, 13 purpose, and cost of the project; 14 (B) outlines the proposed financial plan, 15 including the requested credit assistance and 16 the proposed obligor; 17 (C) provides a status of environmental re- 18 view; and 19 (D) provides information regarding satis- 20 faction of other eligibility requirements of the 21 BIFIA program. 22 (9) LINE OF CREDIT.—The term ‘‘line of cred- 23 it’’ means an agreement entered into by the Assist- 24 ant Secretary with an obligor under section 5 to pro- 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 741 IS vide a direct loan at a future date upon the occur- 1 rence of certain events. 2 (10) LOAN GUARANTEE.—The term ‘‘loan guar- 3 antee’’ means any guarantee or other pledge by the 4 Assistant Secretary to pay all or part of the prin- 5 cipal of and interest on a loan or other debt obliga- 6 tion issued by an obligor and funded by a lender. 7 (11) OBLIGOR.—The term ‘‘obligor’’ means a 8 party that— 9 (A) is primarily liable for payment of the 10 principal of or interest on a Federal credit in- 11 strument; and 12 (B) may be a corporation, company, part- 13 nership, joint venture, trust, or governmental 14 entity, agency, or instrumentality. 15 (12) PROJECT.—The term ‘‘project’’ means a 16 project— 17 (A) to construct and deploy infrastructure 18 for the provision of broadband service; and 19 (B) that the Assistant Secretary deter- 20 mines will— 21 (i) provide access or improved access 22 to broadband service to consumers residing 23 in areas of the United States that have no 24 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 741 IS access to broadband service or do not have 1 access to broadband service offered— 2 (I) with a download speed of not 3 less than 100 megabits per second; 4 (II) with an upload speed of not 5 less than 20 megabits per second; and 6 (III) with latency that is suffi- 7 ciently low to allow real-time, inter- 8 active applications; or 9 (ii) provide access or improved access 10 to broadband service to— 11 (I) schools, libraries, medical and 12 healthcare providers, community col- 13 leges and other institutions of higher 14 education, museums, religious organi- 15 zations, and other community support 16 organizations and entities to facilitate 17 greater use of broadband service by or 18 through those organizations; 19 (II) organizations and agencies 20 that provide outreach, access, equip- 21 ment, and support services to facili- 22 tate greater use of broadband service 23 by low-income, unemployed, aged, and 24 otherwise vulnerable populations; 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 741 IS (III) job-creating strategic facili- 1 ties located within a State-designated 2 economic zone, Economic Develop- 3 ment District designated by the De- 4 partment of Commerce, Empower- 5 ment Zone designated by the Depart- 6 ment of Housing and Urban Develop- 7 ment, or Enterprise Community des- 8 ignated by the Department of Agri- 9 culture; or 10 (IV) public safety agencies. 11 (13) PROJECT OBLIGATION.—The term 12 ‘‘project obligation’’ means any note, bond, deben- 13 ture, or other debt obligation issued by an obligor in 14 connection with the financing of a project, other 15 than a Federal credit instrument. 16 (14) PUBLIC AUTHORITY.—The term ‘‘public 17 authority’’ means— 18 (A) the Federal Government or a Federal 19 instrumentality with authority to finance, build, 20 operate, or maintain infrastructure for the pro- 21 vision of broadband service; or 22 (B) the government of a State, political 23 subdivision of a State, or Indian Tribe, or an 24 instrumentality thereof, with authority to fi- 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 741 IS nance, build, operate, or maintain infrastruc- 1 ture for the provision of broadband service. 2 (15) RATING AGENCY.—The term ‘‘rating agen- 3 cy’’ means a credit rating agency registered with the 4 Securities and Exchange Commission as a nationally 5 recognized statistical rating organization (as defined 6 in section 3(a) of the Securities Exchange Act of 7 1934 (15 U.S.C. 78c(a))). 8 (16) SECURED LOAN.—The term ‘‘secured 9 loan’’ means a direct loan or other debt obligation 10 issued by an obligor and funded by the Assistant 11 Secretary in connection with the financing of a 12 project under section 4. 13 (17) SMALL PROJECT.—The term ‘‘small 14 project’’ means a project having eligible project costs 15 that are reasonably anticipated not to equal or ex- 16 ceed $20,000,000. 17 (18) STATE.—The term ‘‘State’’ has the mean- 18 ing given the term in section 3 of the Communica- 19 tions Act of 1934 (47 U.S.C. 153). 20 (19) SUBSIDY AMOUNT.—The term ‘‘subsidy 21 amount’’ means the amount of budget authority suf- 22 ficient to cover the estimated long-term cost to the 23 Federal Government of a Federal credit instru- 24 ment— 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 741 IS (A) calculated on a net present value basis; 1 and 2 (B) excluding administrative costs and any 3 incidental effects on governmental receipts or 4 outlays in accordance with the Federal Credit 5 Reform Act of 1990 (2 U.S.C. 661 et seq.). 6 (20) SUBSTANTIAL COMPLETION.—The term 7 ‘‘substantial completion’’ means, with respect to a 8 project receiving credit assistance under the BIFIA 9 program— 10 (A) the commencement of the provision of 11 broadband service using the infrastructure 12 being financed; or 13 (B) a comparable event, as determined by 14 the Assistant Secretary and specified in the 15 credit agreement. 16 SEC. 3. DETERMINATION OF ELIGIBILITY AND PROJECT SE- 17 LECTION. 18 (a) ELIGIBILITY.— 19 (1) IN GENERAL.—A project shall be eligible to 20 receive credit assistance under the BIFIA program 21 if— 22 (A) the entity proposing to carry out the 23 project submits a letter of interest prior to sub- 24 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 741 IS mission of a formal application for the project; 1 and 2 (B) the project meets the criteria described 3 in this subsection. 4 (2) CREDITWORTHINESS.— 5 (A) IN GENERAL.—Except as provided in 6 subparagraph (B), to be eligible for assistance 7 under the BIFIA program, a project shall sat- 8 isfy applicable creditworthiness standards, 9 which, at a minimum, shall include— 10 (i) adequate coverage requirements to 11 ensure repayment; 12 (ii) an investment-grade rating from 13 not less than 2 rating agencies on debt 14 senior to the Federal credit instrument; 15 and 16 (iii) a rating from not less than 2 rat- 17 ing agencies on the Federal credit instru- 18 ment. 19 (B) SMALL PROJECTS.—In order for a 20 small project to be eligible for assistance under 21 the BIFIA program, the project shall satisfy al- 22 ternative creditworthiness standards that shall 23 be established by the Assistant Secretary under 24 section 6 for purposes of this paragraph. 25 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 741 IS (3) APPLICATION.—A public authority, public- 1 private partnership, or any other legal entity under- 2 taking the project and authorized by the Assistant 3 Secretary shall submit a project application that is 4 acceptable to the Assistant Secretary. 5 (4) ELIGIBLE PROJECT COST PARAMETERS FOR 6 INFRASTRUCTURE PROJECTS.—Eligible project costs 7 shall be reasonably anticipated to equal or exceed 8 $2,000,000 in the case of a project or program of 9 projects— 10 (A) in which the applicant is a public au- 11 thority (other than the Federal Government, a 12 Federal instrumentality, or a State government 13 or instrumentality); 14 (B) located on a facility owned by a polit- 15 ical subdivision of a State; or 16 (C) for which the Assistant Secretary de- 17 termines that a political subdivision of a State 18 is substantially involved in the development of 19 the project. 20 (5) DEDICATED REVENUE SOURCES.—The ap- 21 plicable Federal credit instrument shall be repayable, 22 in whole or in part, from— 23 (A) amounts charged to— 24 VerDate Sep 11 2014 18:11 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S741.IS S741 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 741 IS (i) subscribers of broadband service 1 for that service; or 2 (ii) subscribers of any related service 3 provided over the same infrastructure for 4 that related service; 5 (B) user fees; 6 (C) payments owing to the obligor under a 7 public-private partnership; or 8 (D) other dedicated revenue sources that 9 also secure or fund the project obligations. 10 (6) [Text truncated for display. Full text available on Congress.gov.]