Eliminate the Digital Divide Act of 2021

II 117TH CONGRESS 1ST SESSION S. 922 To amend the Communications Act of 1934 to provide funding to States for extending broadband service to unserved areas in partnership with broadband service providers, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 23, 2021 Mr. CORNYN (for himself and Mr. MANCHIN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend the Communications Act of 1934 to provide fund- ing to States for extending broadband service to unserved areas in partnership with broadband service providers, 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. 3 This Act may be cited as the ‘‘Eliminate the Digital 4 Divide Act of 2021’’. 5 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 2 •S 922 IS SEC. 2. EXPANSION OF BROADBAND ACCESS IN UNSERVED 1 AREAS. 2 (a) IN GENERAL.—The Communications Act of 1934 3 (47 U.S.C. 151 et seq.) is amended— 4 (1) in title I (47 U.S.C. 151 et seq.), by adding 5 at the end the following: 6 ‘‘SEC. 14. EXPANSION AND ADOPTION OF BROADBAND 7 SERVICE THROUGH STATE FUNDING. 8 ‘‘(a) DEFINITIONS.—In this section: 9 ‘‘(1) BROADBAND FUNDING PARTNER.—The 10 term ‘broadband funding partner’ means an eligible 11 entity that receives funding for a project under this 12 section. 13 ‘‘(2) BROADBAND SERVICE.—The term 14 ‘broadband service’— 15 ‘‘(A) means a mass-market retail service 16 by wire or radio that provides the capability to 17 transmit data to and receive data from all or 18 substantially all internet endpoints, including 19 any capabilities that are incidental to and en- 20 able the operation of the communications serv- 21 ice; 22 ‘‘(B) includes any service that is a func- 23 tional equivalent of the service described in sub- 24 paragraph (A); and 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 3 •S 922 IS ‘‘(C) does not include dial-up internet ac- 1 cess service. 2 ‘‘(3) ELIGIBLE ENTITY.—The term ‘eligible en- 3 tity’ means a private provider of broadband service, 4 or a public-private partnership or cooperative (in- 5 cluding a subsidiary of a cooperative) that provides 6 broadband service, that has submitted to the Com- 7 mission, in addition to any data required to be sub- 8 mitted under section 802, data regarding the service 9 option described in subsection (f)(2) that the entity 10 would offer if the entity were to receive funding 11 under this section. 12 ‘‘(4) HIGH COST AREA.—The term ‘high cost 13 area’ means an unserved area in which the cost of 14 building out broadband service is higher, as com- 15 pared with the average such cost in the United 16 States (and as determined by the Commission), be- 17 cause of— 18 ‘‘(A) the remote location of the area; 19 ‘‘(B) the population density of the area; 20 ‘‘(C) the unique topography of the area; 21 ‘‘(D) a high rate of poverty in the area; or 22 ‘‘(E) any other factor that contributes to 23 the cost of building out that service. 24 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 4 •S 922 IS ‘‘(5) LOCATION.—The term ‘location’ has the 1 meaning given the term by the Commission under 2 rules and guidance that are in effect, as of the date 3 of enactment of this section. 4 ‘‘(6) PROJECT.—The term ‘project’ means an 5 undertaking by a broadband funding partner under 6 this section to construct and deploy infrastructure 7 for the provision of broadband service. 8 ‘‘(7) UNSERVED AREA.—The term ‘unserved 9 area’ means an area that— 10 ‘‘(A) is of a standard size, as established 11 by the Commission; and 12 ‘‘(B) as determined in accordance with the 13 maps created under section 802(c)(1)— 14 ‘‘(i) has no access to broadband serv- 15 ice; or 16 ‘‘(ii) does not have access to 17 broadband service offered— 18 ‘‘(I) with a download speed of at 19 least 25 megabits per second and an 20 upload speed of at least 3 megabits 21 per second; or 22 ‘‘(II) with download and upload 23 speeds that are established as bench- 24 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 5 •S 922 IS marks by the Commission after the 1 date of enactment of this section. 2 ‘‘(b) PROGRAM ESTABLISHED.— 3 ‘‘(1) IN GENERAL.—Not later than 100 days 4 after the date of enactment of this section, or the 5 date on which the maps created under section 6 802(c)(1) are made public, whichever is later, the 7 Commission shall establish a program for States to 8 expand access to broadband service in unserved 9 areas. 10 ‘‘(2) RELATIONSHIP TO UNIVERSAL SERVICE.— 11 The program established under paragraph (1) shall 12 be separate from any universal service program es- 13 tablished under section 254. 14 ‘‘(c) STATE PROGRAM REQUIREMENTS.—A State 15 seeking funding under the program established under sub- 16 section (b) shall create a program that— 17 ‘‘(1) implements the requirements of this sec- 18 tion; 19 ‘‘(2) does not favor the use of any particular 20 technology or any particular eligible entity; 21 ‘‘(3) encourages all eligible entities, including 22 small broadband providers, to participate in the pro- 23 gram through streamlined regulatory requirements 24 for all broadband funding partners; 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 6 •S 922 IS ‘‘(4) takes into account— 1 ‘‘(A) the size and scope of each unserved 2 area, and the number of locations, proposed to 3 be served by each project carried out using the 4 funds; 5 ‘‘(B) the speed of the broadband service 6 provided by eligible entities seeking funding for 7 projects under the program; and 8 ‘‘(C) the ability of the eligible entities that 9 would receive funding for projects under the 10 program to complete the proposed deployment 11 and provision of broadband service under those 12 projects in the areas served by the projects; 13 ‘‘(5) may take into account— 14 ‘‘(A) the size and proportion of the match- 15 ing funds proposed to be committed by the eli- 16 gible entities seeking funding for projects under 17 the program, which may not be provided from 18 any funds derived from government grants, 19 loans, or subsidies; 20 ‘‘(B) the speed with which the eligible enti- 21 ties seeking funding for projects under the pro- 22 gram can complete the proposed deployment 23 and provision of broadband service to house- 24 holds under those projects, which may include 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 7 •S 922 IS a review of the topographical effects on the 1 areas being served those projects as a result of 2 the technology to be deployed under those 3 projects; and 4 ‘‘(C) whether an eligible entity seeking 5 funding for a project under the program has 6 the ability to leverage nearby or adjacent 7 broadband service provided by the eligible entity 8 to facilitate the deployment and provision of 9 broadband service proposed under that project; 10 ‘‘(6) establishes— 11 ‘‘(A) periodic buildout milestones, report- 12 ing requirements, and certification by 13 broadband funding partners; and 14 ‘‘(B) a maximum buildout timeframe for a 15 broadband funding partner of 3 years, begin- 16 ning on the date on which funding is provided 17 to the broadband funding partner to undertake 18 a project, except that the State may extend that 19 timeframe if the broadband funding partner es- 20 tablishes that the failure to complete the project 21 within that timeframe is due to— 22 ‘‘(i) delays by third parties, including 23 governmental entities, in providing nec- 24 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 8 •S 922 IS essary permits, approvals, or access to (or 1 construction of) poles; or 2 ‘‘(ii) a State or federally declared dis- 3 aster; 4 ‘‘(7) contains sufficient notice, transparency, 5 accountability, and oversight measures to— 6 ‘‘(A) provide the public and broadband 7 funding partners with notice of the funding pro- 8 vided under this section; and 9 ‘‘(B) deter waste, fraud, and abuse of pro- 10 gram funds; 11 ‘‘(8) establishes procedures for the recovery of 12 funds, in whole or in part, from a broadband fund- 13 ing partner if the broadband funding partner— 14 ‘‘(A) defaults or fails to comply with the 15 buildout requirements established for the 16 project with respect to which the funding re- 17 lates; and 18 ‘‘(B) has not received an extension under 19 paragraph (6)(B); 20 ‘‘(9) establishes procedures for expedited ap- 21 proval for all necessary access to (or construction of) 22 poles, State and local rights-of-way permits, or other 23 approvals in the areas of the State served by 24 projects under the program; 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 9 •S 922 IS ‘‘(10) provides that broadband funding partners 1 are not required to be designated as eligible tele- 2 communications carriers under section 214(e); 3 ‘‘(11) provides that an eligible entity shall grant 4 access to poles, ducts, conduits, and rights-of-way 5 that the eligible entity owns or controls within the 6 State at rates, terms, and conditions regulated by 7 the Commission under, or the State consistent with, 8 section 224 and the rules of the Commission, with- 9 out regard to whether that section otherwise applies 10 with respect to those items; and 11 ‘‘(12) except as otherwise explicitly provided in 12 this section, does not require, or include consider- 13 ation of, the imposition of any new or additional reg- 14 ulatory obligations on broadband funding partners 15 beyond those required under applicable law. 16 ‘‘(d) DISTRIBUTION OF FUNDS TO STATES.— 17 ‘‘(1) COMMISSION DISTRIBUTIONS.— 18 ‘‘(A) IN GENERAL.—Not later than 200 19 days after the date of enactment of this section, 20 or the date on which the maps created under 21 section 802(c)(1) are made public, whichever is 22 later, the Commission, under the program es- 23 tablished under subsection (b), and in accord- 24 ance with the requirements of this section, 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 10 •S 922 IS shall, with respect to the amounts made avail- 1 able to carry out this section— 2 ‘‘(i) reserve 10 percent of those 3 amounts for distributions under subpara- 4 graph (B) to States that have established 5 programs under subsection (c); and 6 ‘‘(ii) of the amounts not reserved 7 under clause (i), make distributions under 8 paragraph (2) to States that have estab- 9 lished programs under subsection (c). 10 ‘‘(B) DISTRIBUTIONS FOR HIGH COST 11 AREAS.—The amount of a distribution to a 12 State under this subparagraph shall be cal- 13 culated as follows: 14 ‘‘(i) Divide the number of high cost 15 areas in the State by the total number of 16 high cost areas in the United States. 17 ‘‘(ii) Multiply the quotient obtained 18 under clause (i) by the total amount re- 19 served under subparagraph (A)(i). 20 ‘‘(2) AMOUNT OF DISTRIBUTIONS FOR PROJECT 21 AWARDS.—The amount of a distribution to a State 22 under paragraph (1) shall be calculated as follows: 23 ‘‘(A) Divide the number of locations in 24 unserved areas in the State by the total number 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 11 •S 922 IS of locations in unserved areas in the United 1 States, as determined in accordance with the 2 maps created under section 802(c)(1). 3 ‘‘(B) Multiply the quotient obtained under 4 subparagraph (A) of this paragraph by the 5 amount described in paragraph (1)(A)(ii). 6 ‘‘(3) STATE ENTITLEMENT.—With respect to a 7 State that has established a program under sub- 8 section (c), the State shall receive a distribution 9 under both of paragraphs (1)(B) and (2) of this sub- 10 section. 11 ‘‘(e) STATE USE OF PROGRAM FUNDS.— 12 ‘‘(1) IN GENERAL.—Not later than 120 days 13 after the date on which a State receives funds under 14 subsection (d), and subject to paragraph (2), the 15 State shall make awards to eligible entities through 16 the program established by the State under sub- 17 section (c). 18 ‘‘(2) FUNDS USED SOLELY FOR UNSERVED 19 AREAS.—A State to which funds are distributed 20 under subsection (d)— 21 ‘‘(A) may not— 22 ‘‘(i) use any portion of those funds for 23 a project in any area that is not an 24 unserved area; or 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 12 •S 922 IS ‘‘(ii) use more than 5 percent of those 1 funds to administer the program estab- 2 lished by the State under subsection (c); 3 and 4 ‘‘(B) shall— 5 ‘‘(i) before making any awards de- 6 scribed in paragraph (1), consult the maps 7 created under section 802(c)(1), as up- 8 dated through the resolution of any chal- 9 lenges brought under section 802(b)(5), to 10 create a list of areas within the State that 11 are unserved areas, which the State shall 12 make publicly available; 13 ‘‘(ii) from the list created under 14 clause (i), remove any area in the State 15 that— 16 ‘‘(I) has been awarded funding— 17 ‘‘(aa) in the Rural Digital 18 Opportunity Fund Phase I auc- 19 tion provided for in the Report 20 and Order in the matter of Rural 21 Digital Opportunity Fund and 22 Connect America Fund adopted 23 by the Commission on January 24 30, 2020 (FCC 20–5); or 25 VerDate Sep 11 2014 01:07 Apr 13, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S922.IS S922 kjohnson on DSK79L0C42PROD with BILLS 13 •S 922 IS ‘‘(bb) under subpart D of 1 part 54 of title 47, Code of Fed- 2 eral Regulations, or any suc- 3 cessor regulations; 4 ‘‘(II) has been awarded funding 5 through any Rural Utilities Service 6 broadband funding program with a 7 minimum speed commitment of 25 8 megabits per second for downloads 9 and 3 megabits per second for 10 uploads; 11 ‘‘(III) has been awarded funding 12 through any exist [Text truncated for display. 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