(1) Short title. This section shall be known and may be cited as the "Connect Colorado to Enhance Economic Development, Telehealth, Education, and Safety Act".
The general assembly hereby finds, determines, and declares that to promote the statepolicy of providing universal access to broadband service, as set forth in section 40-15-502 (4), it may be necessary to provide financial assistance through additional support mechanisms if competition for local exchange services fails to deliver broadband service throughout the state. "Advanced service" includes "broadband service" for purposes of this section only.
The commission may allocate the Colorado high cost support mechanism, established under section 40-15-208 and referred to in this section as the "HCSM", for the deployment of broadband service in unserved areas of the state pursuant to this section and section 40-15-208 only. The commission may fund the deployment of broadband service in unserved areas of the state through use of the HCSM surcharge and surcharge rate in effect on January 1, 2018. Pursuant to subsection (4) of this section and consistent with sections 40-15207 and 40-15-208, the commission shall determine funds available for broadband deployment and the administration of the board as prescribed in section 40-15-208 or from the HCSM money that it determines is no longer required by the HCSM to support universal basic service through an effective competition determination. The money available for broadband deployment shall be maintained by the HCSM third-party contractor and held in a separate account from money used for basic voice service. Money held for broadband deployment shall not be disbursed for basic voice service, and money held for basic voice service shall not be disbursed for broadband deployment. The commission shall only disburse money for broadband deployment grants from the HCSM as directed by the board. Nothing in this section increases any surcharge rate charged to help fund the HCSM.
(a) There is hereby created in the state treasury the broadband administrative fund, referred to in this section as the "fund". The fund consists of all money allocated from the HCSM for the administration of the board and all money that the general assembly may appropriate to the fund. The money in the fund is subject to annual appropriation by the general assembly for the purposes set forth in this section. All interest earned from the investment of money in the fund is credited to the fund. All money not expended at the end of the fiscal year remains in the fund and does not revert to the general fund or any other fund.
(b) Repealed.
(5) (a) There is hereby created in the department of regulatory agencies the broadband deployment board, referred to in this section as the "board". The board is an independent board created to implement and administer the deployment of broadband service in unserved areas. The department of regulatory agencies shall staff the board. The board has the powers and duties specified in this section.
The board consists of sixteen members, fifteen of whom are voting members. Themembers of the board shall be selected on the basis of their knowledge of and interest in broadband service and shall serve for four-year terms. A member of the board shall not serve more than two consecutive full four-year terms.
No more than eight voting members of any one major political party may serve onthe board at the same time. Members of the board are entitled to seventy-five dollars per diem for attendance at official meetings plus actual and necessary expenses incurred in the conduct of official business. Members of the board shall be appointed as follows:
At least one member from the commission; one member from the Colorado office ofeconomic development and international trade in the office of the governor; one member from the department of local affairs, created in section 24-1-125, C.R.S.; and one member from the office of information technology, created in section 24-37.5-103, C.R.S., as appointed by the governor. The governor shall select three of these four appointees to serve as voting members of the board.
Three voting members representing local entities:
One of whom is a county commissioner, as appointed by the president of the senatein consultation with Colorado Counties, Inc.;
One of whom is a mayor or city councilperson, as appointed by the speaker of thehouse of representatives in consultation with the Colorado municipal league; and
One of whom is any other representative of a local entity and who has a backgroundin broadband service and expertise in rural economic development, education, or telemedicine, as appointed by the minority leader of the senate;
(III) Seven voting members representing the broadband industry:
One of whom represents a wireless provider, as appointed by the minority leader ofthe house of representatives;
One of whom represents a wireline provider, as appointed by the minority leader ofthe senate;
One of whom represents a broadband satellite provider, as appointed by the governor;
One of whom represents a cable provider, as appointed by the president of the senate;
One of whom represents a rural local exchange carrier, as appointed by the governor;
One of whom represents a competitive local exchange carrier, as appointed by thespeaker of the house of representatives; and
One of whom represents a cable provider serving rural areas, as appointed by thepresident of the senate; and
(IV) Two voting members of the public:
One of whom resides in an unserved area of the western slope of the state, as appointed by the speaker of the house of representatives; and
One of whom resides in an unserved area of the eastern slope of the state, as appointed by the minority leader of the house of representatives.
(Deleted by amendment, L. 2018.)
The board shall meet as often as necessary to carry out its duties as defined in thissection.
The term of any member of the board who misses more than two consecutive regularboard meetings without good cause shall be terminated, and his or her successor shall be appointed in the manner provided for appointments under this section.
(I) If a board member has a conflict of interest with respect to any matter addressedby the board, including a financial interest in the matter, the member shall recuse himself or herself from any discussion or decisions on the matter.
(II) (A) A board member appointed pursuant to subsection (5)(c)(I), (5)(c)(II), or (5)(c)(IV) of this section is not deemed to have a conflict of interest merely by virtue of residing in or representing an unserved area or an area that is the subject of an application before the board.
(B) A board member appointed pursuant to subsection (5)(c)(III) of this section is deemed to have a conflict of interest with respect to an application filed by an entity that the board member represents; however, if such application is filed, the board member may still participate in discussions about other applications before the board, but shall not vote on those other applications.
(g) In the event of a tie vote of the board, the application, appeal, proposition, or other matter being voted upon fails.
Repealed.
The board shall provide notice to and requests for proposals from incumbent providers, incumbent broadband providers, and local entities about the board's purpose to deploy broadband service in unserved areas. The board shall ensure that both the manner and amount of notice provided under this subsection (7) are adequate and equitable for all potentially eligible applicants.
The board shall direct the commission to transfer money, in a manner consistent withthis section, from the account for broadband deployment established in the HCSM to approved grant applicants. The board shall develop criteria for awarding money for new projects to deploy broadband in unserved areas, including:
(a) (I) Developing a project application process that places the burden on an eligible applicant to demonstrate that its proposed project meets the project eligibility criteria established in this subsection (8), including a requirement that the proposal concern a new project, and not a project already in progress, and a requirement to prove that the area to be served by the proposed project is an unserved area.
(II) To prove that the area to be served is an unserved area, the applicant:
Must submit a map and a list of household addresses demonstrating the insufficientavailability of broadband service in the area to the board; the board of county commissioners, city council, or other local entity with authority over the area to be served; and all incumbent providers or incumbent broadband providers that provide broadband internet service or broadband service in the area proposed to be served in the application; and
May submit to the board the written certification of a local entity as described insubsection (8)(a)(III) of this section.
(III) As additional evidence of the insufficient availability of broadband service in the area that an applicant proposes to serve, the applicant may request from a local entity with jurisdiction over the area proposed to be served a written certification that the area is an unserved area. The local entity shall not provide written certification until after the local entity has:
Provided public notice, including notification to any incumbent provider, if any, andheld a hearing on the issue; and
Collected, solicited, and reviewed any quantitative data that it deems appropriateregarding the availability of broadband service in the area that the applicant proposes to serve. A local entity must collect, solicit, and review quantitative data in accordance with rules adopted by the executive director of the department of regulatory agencies, in consultation with the office of information technology created in section 24-37.5-103 and the board, regarding standards concerning quantitative data.
(IV) The board shall establish a notice and comment period of at least sixty days within which any interested party, including a local entity with jurisdiction over the area proposed to be served, whether or not the entity provided a written certification as described in subsection (8)(a)(III) of this section, may review and comment on the application.
Developing a methodology for determining whether a proposed project will serveunserved areas. The board's methodology must give substantial weight to a local entity's written certification on the issue of whether the area to be served is an unserved area.
Denying funding for applications that overbuild areas receiving federal sources ofhigh cost support or federal broadband grants for construction of a broadband network that will be completed within twenty-four months after the date that the applicant filed the application so as to maximize the total available state and federal support for rural broadband development. An incumbent broadband provider receiving federal funds must submit to the board an affidavit from a company officer that the build-out will be completed within the twenty-four-month period. Upon completion of the project, an incumbent broadband provider will provide documentation to the board that demonstrates that the unserved addresses meet the minimum download and upload speeds established in the FCC's definition of high-speed internet access or broadband. If the incumbent broadband provider fails to meet the commitment made in the affidavit filed, the board may award a grant to another provider to provide service for the addresses that remain unserved.
(c.5) Denying funding for overbuilding of existing broadband networks in order to maximize the total available support for financing rural broadband development; (d) Ensuring that a proposed project includes:
Access to measurable speeds of at least ten megabits per second downstream and onemegabit per second upstream or measurable speeds at least equal to the FCC's definition of highspeed internet access or broadband, whichever is faster;
Independent funding secured for at least twenty-five percent of the total cost of theproposed project; and
A requirement to utilize any award granted from the fund for infrastructure purposes only and not for operations;
(e) Providing additional consideration for proposed projects that include at least some of the following factors:
Proposed projects that provide service to residential and business addresses that lackbroadband internet service at measurable speeds of at least ten megabits per second downstream and one megabit per second upstream;
Proposed projects that are endorsed by local entities interested in obtaining broadband internet service in unserved areas of the state;
Proposed projects that have speeds of at least ten megabits per second downstreamand one megabit per second upstream or measurable speeds at least equal to the FCC's definition of high-speed internet access or broadband, whichever is faster;
Proposed projects for which the applicant has an established record of operation inthe area of the grant application; and
Proposed projects providing last-mile broadband service, which is defined as theportion of broadband service that delivers an internet connection to an end user that lacks access to broadband service at measurable speeds greater than fifty-six kilobits per second; (f) Providing an assessment of the following factors:
Whether the proposed project will provide services via a licensed or unlicensed means of transmission;
The cost-effectiveness of the proposed project's proposed method for expanding broadband internet service into unserved areas; and
The reliability of the network providing broadband services;
(g) (I) With regard to an applicant that has submitted a proposed project to the board, affording each incumbent provider in the area that is not providing access to a broadband network in the unserved area a right of first refusal regarding the implementation of a project in the unserved area.
(II) If an incumbent provider proposes a project for the area, the incumbent provider commits to providing access to a broadband network:
Within one year after the applicant's submission of a proposed project;
At demonstrated downstream and upstream speeds equal to or faster than the speedsindicated in the applicant's proposed project; and
At a cost per household in the area to be served that is equal to or less than the costper household indicated in the applicant's proposed project.
Ensuring that broadband service grant awards are not provided in areas other thanunserved areas;
In the case of a franchise agreement, ensuring that broadband service grant awardsare not provided in areas with a population density large enough to require service under an existing franchise agreement;
Establishing a grant award process that:
Allows an applicant to apply for grants on multiple projects in a given year if theapplicant makes a separate application for each project. The board may approve more than one of the applicant's projects within a single year.
Ensures the geographically equitable distribution of grant awards;
Provides for an appeals process for any party aggrieved by an award or denial ofgrant money, whether exercising a right of first refusal, having filed any comments regarding the initial grant application, or both. If a provider of broadband service or a broadband network that alleges funding provided pursuant to this section will overbuild the provider's broadband network, the provider is an aggrieved party with standing to appeal under this subsection
(8)(j)(III).
Requires the board to consider appeals alleging that the application area is no longer unserved because federal support improves a broadband network for service locations that are adjacent to the area receiving the federal award and are within the application area.
(k) Establishing reporting and accountability requirements for a project receiving financial support from the fund, including contractual requirements that:
The applicant secure a performance bond for the project, as appropriate;
The applicant demonstrate an ability to provide broadband service at a reasonablecost per household in the area to be served by the proposed project;
The applicant demonstrate an ability to complete the proposed project within a reasonable time, not to exceed two years, unless delayed by a government entity; and
Prohibit an applicant from using grant award moneys to offer, provide, or sell broadband services in an area not meeting the definition of unserved area.
(8.3) (a) The board shall periodically review the websites of the federal trade commission and the FCC to determine whether either of those federal agencies has issued a final order or entered into a settlement or consent decree regarding any:
Applicant seeking broadband deployment grant money from the board; or
Internet service provider, as defined in section 40-15-209 (4)(b), to which the boardhas awarded broadband deployment grant money.
(b) The board shall review any order or decree described in subsection (8.3)(a) of this section to determine whether the internet service provider that is the subject of the order or decree has engaged in conduct prohibited by section 40-15-209 (1)(a) to (1)(d). The board shall deny the application of any applicant subject to such a federal order or decree and shall inform the commission pursuant to section 40-15-209 (2)(a) about any internet service provider awarded broadband deployment grant money that is subject to such an order or decree.
(8.5) (a) The board shall deny an application that contains an area that does not meet the definition of unserved area and shall grant an appeal to an incumbent broadband provider that demonstrates, by a preponderance of the evidence, that an area covered by an application does not meet the definition of unserved area.
(b) If all other application requirements remain met, an application may be amended at any time to remove from the application coverage of an area that does not meet the criteria established pursuant to this section. Alternatively, the board may award a partial grant for an area that does meet the criteria.
(9) (a) The board shall report annually to the transportation and energy committee and the business affairs and labor committee in the house of representatives and to the agriculture, natural resources, and energy committee and business, labor, and technology committee in the senate, or their successor committees, on the projects supported by money from the HCSM account dedicated to broadband deployment in a given year, including information on:
The number of projects;
The location of each project;
The amount of funding received for each project; and(IV) A description of each project.
(b) Notwithstanding section 24-1-136 (11), C.R.S., the report required under this subsection (9) continues indefinitely.
(10) Local entities are encouraged to cooperate with respect to timelines and permit fees concerning projects in their geographic area.
(10.5) (a) The board may apply for federal funding of broadband deployment projects and programs. The HCSM third-party contractor shall maintain any federal money awarded for broadband deployment in a separate account of the HCSM that is dedicated to allocating federal broadband deployment money. The commission is authorized to disburse any money from the account as directed by the board.
(b) (I) Following the model of New York's petition for expedited waiver, the board shall immediately petition the FCC for a waiver from the auction rules that prohibit a state entity from applying for connect America fund phase II auction money to allow the board itself to allocate auction money for broadband deployment projects approved by the board.
(II) After submitting the petition to the FCC, the board may:
File any additional documentation that the FCC requires of the board in consideringthe board's petition; and
Coordinate with the FCC to develop any conditions that the FCC might require togrant the petition.
(III) If the FCC grants the board's petition and awards the board auction money:
The HCSM third-party contractor shall maintain any federal money awarded fromthe auction in the separate account of the HCSM described in subsection (10.5)(a) of this section; and
The commission is authorized to disburse the federal money in that account for broadband deployment grants as directed by the board.
(IV) The board may coordinate with the FCC to comply with any conditions established by the FCC in granting the petition. If any such FCC conditions impose project eligibility, application process, award criteria, or other requirements that are distinct from the requirements set forth in this section or established by the board pursuant to this section, the commission may, by rule and in consultation with the board, establish requirements that comply with the FCC's conditions; except that any requirements established by the commission by rule pursuant to this subsection (10.5)(b) must apply only to broadband deployment projects that are eligible to receive auction money.
(c) As used in this subsection (10.5):
"Auction rules" refers to the FCC's rules in 47 CFR 54.309 to 54.316, which rulesconcern the implementation of the connect America fund phase II auction.
"Connect America fund phase II auction" or "auction" refers to a ten-year auction offederal money through which the FCC will allocate money, by means of a competitive bidding process, to telecommunications providers who commit to providing voice and broadband service in high-cost areas of the nation in accordance with the FCC's auction rules.
"New York's petition for expedited waiver" refers to a petition that the state of NewYork filed with the FCC seeking a waiver from the FCC's auction rules with regard to the rules' limitation prohibiting state entities from applying for federal money through the auction. The FCC granted the waiver request on January 26, 2017, thus authorizing the state of New York to directly receive and allocate auction money to broadband projects within the state.
(10.6) (a) (I) Following the model of New York's petition for expedited waiver, the board, on or before January 1, 2019, shall petition the FCC for a waiver from the FCC's rules concerning the remote areas fund to seek FCC authorization for the board to itself allocate remote areas fund money for broadband deployment projects in Colorado.
(II) After submitting the petition to the FCC, the board may:
File any additional documentation that the FCC requires of the board in consideringthe board's petition; and
Coordinate with the FCC to develop any conditions that the FCC might require togrant the petition.
If the FCC denies the board's petition, the board shall not file a new petition orotherwise subsequently apply for money from the remote areas fund.
If the FCC grants the board's petition:
The HCSM third-party contractor shall maintain any federal money awarded throughthe remote areas fund in a separate account of the HCSM that is dedicated to allocating the federal money in compliance with any conditions established by the FCC in granting the petition;
The commission is authorized to disburse the federal money in that account for broadband deployment grants as authorized by the board and in compliance with any conditions established by the FCC in granting the petition; and
The board is authorized to coordinate with the FCC to comply with any conditionsestablished by the FCC in granting the petition. If any such FCC conditions impose project eligibility, application process, award criteria, or other requirements that are distinct from the requirements set forth in this section or established by the board pursuant to this section, the commission may, by rule and in consultation with the board, establish requirements that comply with the FCC's conditions; except that any requirements established by the commission by rule pursuant to this subsection (10.6) must apply only to broadband deployment projects that are eligible to receive the federal remote areas fund money.
(d) As used in this subsection (10.6):
"Auction rules" refers to the FCC's rules in 47 CFR 54.309 to 54.316, which rulesconcern the implementation of the connect America fund phase II auction.
"Connect America fund" refers to the federal universal service high-cost programthat allows eligible telecommunications providers to recover some of their costs from the federal government for providing voice and broadband service in high-cost areas.
"Connect America phase II auction" refers to a ten-year auction of federal moneythrough which the FCC will allocate money through a competitive bidding process to telecommunications providers who commit to providing voice and broadband service in highcost areas of the nation in accordance with the FCC's auction rules.
"New York's petition for expedited waiver" refers to a petition that the state of NewYork filed with the FCC seeking a waiver from the FCC's auction rules, which waiver the FCC granted on January 26, 2017.
"Remote areas fund" refers to a fund created by the FCC as part of its connect America fund to facilitate broadband deployment in extremely high-cost areas of the nation.
(10.7) The board shall make every effort to ensure that a project funded pursuant to this section does not overbuild any project supported or approved by the department of local affairs.
(10.9) As used in this section:
"Incumbent broadband provider" means a provider that offers broadband internet service over a broadband network in an area covered by an application filed pursuant to this section.
"Overbuild" or "overbuilding" means providing a broadband network to a householdor households that:
At the time of application, either have access to a broadband network or have received federal sources of high cost support or federal broadband grants to provide access to a broadband network; and
Account for twenty percent or more of the total household or households to be served by a proposed wireless project.
(11) This section is repealed, effective September 1, 2024. Before its repeal, the powers, duties, and functions of the board regarding the deployment of broadband services into unserved areas are scheduled for review in accordance with section 24-34-104.
Source: L. 2014: Entire section added, (HB 14-1328), ch. 173, p. 632, § 4, effective May
10. L. 2016: (4)(a) amended, (HB 16-1184), ch. 77, p. 200, § 1, effective January 1, 2017. L. 2017: (3), (4)(a), and IP(8) amended, (SB 17-306), ch. 365, p. 1907, § 1, effective June 6. L. 2018: (10.5) added, (HB 18-1116), ch. 2, p. 24, § 1, effective January 29; (3), (5)(a), (5)(b), IP(5)(c), (5)(c)(II)(C), (5)(c)(III), (5)(c)(IV), (5)(f), (7), IP(8), (8)(a), (8)(c), (8)(d)(I), (8)(e),
(8)(j), IP(9)(a), and (11) amended, (4)(b) and (6) repealed, and (5)(g), (8)(c.5), (8.5), (10.7), and (10.9) added, (SB 18-002), ch. 89, p. 710, § 4, effective August 8; (8)(g) amended, (HB 181099), ch. 92, p. 731, § 1, effective August 8; (10.6) added, (SB 18-104), ch. 93, p. 734, § 2, effective August 8. L. 2019: (8.3) added, (SB 19-078), ch. 210, p. 2215, § 2, effective May 17. L. 2020: IP(8), (8)(a), and (8)(b) amended, (HB 20-1137), ch. 241, p. 1162, § 2, effective September 14.
Editor's note: (1) Section 5 of chapter 210 (SB 19-078), Session Laws of Colorado 2019, provides that the act changing this section applies to conduct occurring on or after May 17, 2019.
(2) Section 3 of chapter 241 (HB 20-1137), Session Laws of Colorado 2020, provides that the act changing this section applies to applications submitted on or after September 14, 2020.
Cross references: For the legislative declaration in SB 18-104, see section 1 of chapter 93, Session Laws of Colorado 2018.