Eliminate the Digital Divide Act of 2020

II 116TH CONGRESS 2D SESSION S. 4789 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 OCTOBER 1, 2020 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 2020’’. 5 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4789 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 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4789 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 area in which the cost of building 14 out broadband service is higher, as compared with 15 the average such cost in the United States (and as 16 determined by the Commission), because of— 17 ‘‘(A) the remote location of the area; 18 ‘‘(B) the scarcity of services in the area; 19 ‘‘(C) the unique topography of the area; 20 ‘‘(D) a high rate of poverty in the area; or 21 ‘‘(E) any other factor that contributes to 22 the cost of building out that service. 23 ‘‘(5) LOCATION.—The term ‘location’ has the 24 meaning given the term by the Commission under 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4789 IS rules and guidance that are in effect, as of the date 1 of enactment of this section. 2 ‘‘(6) PROJECT.—The term ‘project’ means an 3 undertaking by a broadband funding partner under 4 this section to construct and deploy infrastructure 5 for the provision of broadband service. 6 ‘‘(7) UNSERVED AREA.—The term ‘unserved 7 area’ means an area that, as determined in accord- 8 ance with the maps created under section 9 802(c)(1)— 10 ‘‘(A) has no access to broadband service; 11 or 12 ‘‘(B) does not have access to broadband 13 service offered— 14 ‘‘(i) with a download speed of at least 15 25 megabits per second; and 16 ‘‘(ii) with an upload speed of at least 17 3 megabits per second. 18 ‘‘(b) PROGRAM ESTABLISHED.— 19 ‘‘(1) IN GENERAL.—Not later than 100 days 20 after the date of enactment of this section, the Com- 21 mission shall establish a program for States to ex- 22 pand access to broadband service in unserved areas. 23 ‘‘(2) RELATIONSHIP TO UNIVERSAL SERVICE.— 24 The program established under paragraph (1) shall 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4789 IS be separate from any universal service program es- 1 tablished under section 254. 2 ‘‘(c) STATE PROGRAM REQUIREMENTS.—A State 3 seeking funding under the program established under sub- 4 section (b) shall create a program that— 5 ‘‘(1) implements the requirements of this sec- 6 tion; 7 ‘‘(2) does not favor the use of any particular 8 technology or any particular eligible entity; 9 ‘‘(3) encourages small broadband providers to 10 participate in the program through streamlined reg- 11 ulatory requirements for all broadband funding part- 12 ners; 13 ‘‘(4) takes into account— 14 ‘‘(A) the size and scope of each unserved 15 area, and the number of locations, proposed to 16 be served by each project carried out using the 17 funds; and 18 ‘‘(B) the speed of the broadband service 19 provided by eligible entities seeking funding for 20 projects under the program; 21 ‘‘(5) may take into account— 22 ‘‘(A) the size and proportion of the match- 23 ing funds proposed to be committed by the eli- 24 gible entities seeking funding for projects under 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4789 IS the program, which may not be provided from 1 any funds derived from government grants, 2 loans, or subsidies; 3 ‘‘(B) the speed with which the eligible enti- 4 ties seeking funding for projects under the pro- 5 gram can complete the proposed deployment 6 and provision of broadband service to house- 7 holds under those projects; and 8 ‘‘(C) whether an eligible entity seeking 9 funding for a project under the program has 10 the ability to leverage nearby or adjacent 11 broadband service provided by the eligible entity 12 to facilitate the deployment and provision of 13 broadband service proposed under that project; 14 ‘‘(6) establishes— 15 ‘‘(A) periodic buildout milestones, report- 16 ing requirements, and certification by 17 broadband funding partners; and 18 ‘‘(B) a maximum buildout timeframe for a 19 broadband funding partner of 3 years, begin- 20 ning on the date on which funding is provided 21 to the broadband funding partner to undertake 22 a project, except that the State may extend that 23 timeframe if the broadband funding partner es- 24 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4789 IS tablishes that the failure to complete the project 1 within that timeframe is due to— 2 ‘‘(i) delays by third parties in pro- 3 viding necessary permits, approvals, or ac- 4 cess to (or construction of) poles; or 5 ‘‘(ii) a State or federally declared dis- 6 aster; 7 ‘‘(7) contains sufficient notice, transparency, 8 accountability, and oversight measures to— 9 ‘‘(A) provide the public and broadband 10 funding partners with notice of the funding pro- 11 vided under this section; and 12 ‘‘(B) deter waste, fraud, and abuse of pro- 13 gram funds; 14 ‘‘(8) establishes procedures for the recovery of 15 funds, in whole or in part, from a broadband fund- 16 ing partner if the broadband funding partner— 17 ‘‘(A) defaults or fails to comply with the 18 buildout requirements established for the 19 project with respect to which the funding re- 20 lates; and 21 ‘‘(B) has not received an extension under 22 paragraph (6)(B); 23 ‘‘(9) establishes procedures for broadband fund- 24 ing partners to receive expedited approval for all 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4789 IS necessary access to (or construction of) poles, State 1 and local rights-of-way permits, or other approvals 2 in the areas of the State served by projects under 3 the program; 4 ‘‘(10) provides that broadband funding partners 5 are not required to be designated as eligible tele- 6 communications carriers under section 214(e); 7 ‘‘(11) provides that an eligible entity shall grant 8 access to poles, ducts, conduits, and rights-of-way 9 that the eligible entity owns or controls within the 10 State at rates, terms, and conditions regulated by 11 the Commission under, or the State consistent with, 12 section 224, without regard to whether that section 13 otherwise applies with respect to those items; and 14 ‘‘(12) except as otherwise explicitly provided in 15 this section, does not require, or include consider- 16 ation of, the imposition of any new or additional reg- 17 ulatory obligations on broadband funding partners 18 beyond those required under applicable law. 19 ‘‘(d) DISTRIBUTION OF FUNDS TO STATES.— 20 ‘‘(1) COMMISSION DISTRIBUTIONS.— 21 ‘‘(A) IN GENERAL.—Not later than 200 22 days after the date of enactment of this section, 23 the Commission, under the program established 24 under subsection (b), and in accordance with 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4789 IS the requirements of this section, shall, with re- 1 spect to the amounts made available to carry 2 out this section— 3 ‘‘(i) reserve 10 percent of those 4 amounts for distributions under subpara- 5 graph (B) to States that have established 6 programs under subsection (c); and 7 ‘‘(ii) of the amounts not reserved 8 under clause (i), make distributions under 9 paragraph (2) to States that have estab- 10 lished programs under subsection (c). 11 ‘‘(B) DISTRIBUTIONS FOR HIGH COST 12 AREAS.—The amount of a distribution to a 13 State under this subparagraph shall be cal- 14 culated as follows: 15 ‘‘(i) Divide the number of high cost 16 areas in the State by the total number of 17 high cost areas in the United States. 18 ‘‘(ii) Multiply the quotient obtained 19 under clause (i) by the total amount re- 20 served under subparagraph (A)(i). 21 ‘‘(2) AMOUNT OF DISTRIBUTIONS FOR PROJECT 22 AWARDS.—The amount of a distribution to a State 23 under paragraph (1) shall be calculated as follows: 24 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4789 IS ‘‘(A) Divide the number of individuals liv- 1 ing in unserved areas in the State by the total 2 number of individuals living in unserved areas 3 in the United States, as determined in accord- 4 ance with the maps created under section 5 802(c)(1). 6 ‘‘(B) Multiply the quotient obtained under 7 subparagraph (A) of this paragraph by the 8 amount described in paragraph (1)(A)(ii). 9 ‘‘(3) STATE ENTITLEMENT.—With respect to a 10 State that has established a program under sub- 11 section (c), the State shall receive a distribution 12 under both of paragraphs (1)(B) and (2) of this sub- 13 section. 14 ‘‘(e) STATE USE OF PROGRAM FUNDS.— 15 ‘‘(1) IN GENERAL.—Not later than 120 days 16 after the date on which a State receives funds under 17 subsection (d), and subject to paragraph (2), the 18 State shall make awards to eligible entities through 19 the program established by the State under sub- 20 section (c). 21 ‘‘(2) FUNDS USED SOLELY FOR UNSERVED 22 AREAS.—A State to which funds are distributed 23 under subsection (d)— 24 ‘‘(A) may not— 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4789 IS ‘‘(i) use any portion of those funds for 1 a project in any area that is not an 2 unserved area; or 3 ‘‘(ii) use more than 5 percent of those 4 funds to administer the program estab- 5 lished by the State under subsection (c); 6 and 7 ‘‘(B) shall— 8 ‘‘(i) before making any awards de- 9 scribed in paragraph (1), consult the maps 10 created under section 802(c)(1), as up- 11 dated through the resolution of any chal- 12 lenges brought under section 802(b)(5), to 13 create a list of areas within the State that 14 are unserved areas, which the State shall 15 make publicly available; 16 ‘‘(ii) from the list created under 17 clause (i), remove any area in the State 18 that— 19 ‘‘(I) has been awarded funding in 20 the Rural Digital Opportunity Fund 21 Phase I auction provided for in the 22 Report and Order in the matter of 23 Rural Digital Opportunity Fund and 24 Connect America Fund adopted by 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4789 IS the Commission on January 30, 2020 1 (FCC 20–5); 2 ‘‘(II) has been awarded funding 3 through any Rural Utilities Service 4 broadband funding program with a 5 minimum speed commitment of 25 6 megabits per second for downloads 7 and 3 megabits per second for 8 uploads; 9 ‘‘(III) has been awarded funding 10 through any existing program estab- 11 lished by the State with minimum 12 speed commitments described in sub- 13 clause (II); or 14 ‘‘(IV) is the subject of an en- 15 forceable commitment by a broadband 16 provider to serve the area with min- 17 imum speed commitments described in 18 subclause (II), even if, in any such 19 areas, the service is not yet available, 20 provided that the broadband provider 21 is meeting any applicable build-out 22 deadlines; 23 ‘‘(iii) establish a streamlined process 24 that allows a broadband service provider, 25 VerDate Sep 11 2014 00:33 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4789.IS S4789 kjohnson on DSK79L0C42PROD with BILLS 13 •S 4789 IS the State, or a unit of local government 1 within the State not less than 30 days 2 after the date on which the list created 3 under clause (i), as updated under clause 4 (ii), is made publicly available to bring a 5 challenge regarding whether an area on 6 that final list is an unserved area; 7 ‘‘(iv) provide a written notice regard- 8 ing how each challenge brought under 9 clause (iii) was decided, including the rea- 10 sons for that decision; 11 ‘‘(v) update t [Text truncated for display. Full text available on Congress.gov.]