224A.1123 Rural infrastructure improvement fund -- Kentucky Rural
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/ky/224a-1123A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Infrastructure Improvement Program.
(1)The General Assembly hereby finds and declares that:
(a)A rural infrastructure improvement fund, and a program to administer the
fund, is necessary to further the Commonwealth's goal to expand and
accelerate access to broadband service throughout the entire
Commonwealth; and
(b)Supporting the replacement of utility poles will provide benefits to
Kentucky residents by:
1. Facilitating the construction of broadband networks;
2. Minimizing the potential for disputes between broadband providers
and utility pole owners that could otherwise delay deployment;
3. Improving the resiliency and longevity of broadband infrastructure;
and
4. Addressing needs for broadband investment not yet fully met by
existing programs.
(2)As used in this section:
(a)"Application" means an application made under subsection
(4)of this
section for eligible pole replacement costs;
(b)"Eligible pole replacement":
1. Means the removal of an existing utility pole and replacement with a
new utility pole in an unserved area in order to accommodate the
attachment of facilities to be used, in whole or in part, by a retail
provider to provide qualifying broadband service access to
residences or businesses within an unserved area; and
2. Does not include the removal and replacement of a utility pole in
order to accommodate facilities used only for the provision of
wholesale broadband or data transport service, where the owner of
the facilities, or its affiliate, does not use the facilities to provide
qualifying broadband services directly to residences or businesses;
(c)"Eligible pole replacement costs":
1. Means:
a. The actual and reasonable costs paid or incurred to perform an
eligible pole replacement;
b. The amounts of any expenditures to remove and dispose of
the existing utility pole, to purchase and install a replacement
utility pole, or to transfer any existing facilities to the new pole;
and
c. The costs of reimbursing another party for the costs of
performing an eligible pole replacement, when paid or incurred
by the person responsible for the costs; and
2. Does not include:
a. Costs paid or incurred to perform an eligible pole replacement
by a party who is not responsible for those costs, and which
are charged or passed along to the responsible party;
b. Costs for which the party incurring or paying the costs
separately has received or is entitled to receive reimbursement
under the terms of a state or federal grant program for the
deployment of broadband facilities; and
c. The receipt of a state or federal grant where the pole
replacement costs, for which reimbursement is requested,
exceed the pole replacement costs that were reasonably
anticipated at the time of, or on which the amount of, the other
support funding was predicated.
Costs are considered separately reimbursed for purposes of this
paragraph if the amount of an award under another state or federal
broadband program included consideration, by the awarding entity, of the
pole replacement costs by the applicant;
(d)"Fund" means the rural infrastructure improvement fund established by
subsection
(3)of this section;
(e)"Pole owner" means any person or entity that owns or controls a utility
pole;
(f)"Program" means the Kentucky Rural Infrastructure Improvement
Program established by subsection
(4)of this section;
(g)"Qualifying broadband service" means a retail wireline broadband service
capable of delivering Internet access at speeds of at least one hundred
(100)megabits per second in both the downstream and upstream
directions, and with latency at a level sufficient to permit real-time,
interactive applications; and
(h)"Utility pole" means any pole used, in whole or in part, for any wire
communications or electric distribution, regardless of the owner or
operator of the pole.
(a)There is created within the State Treasury a trust and agency account to
be known as the rural infrastructure improvement fund, consisting of
moneys appropriated by the General Assembly, federal funds, grants, and
gifts.
(b)The fund shall be administered by the Office of Broadband Development
and all money deposited in the fund shall be used:
1. By the office to provide reimbursements to qualified applicants
under the Rural Infrastructure Improvement Program established
under subsection
(4)of this section;
2. For the purposes of covering the costs of program administration
and operation; and
3. In a manner consistent with federal law.
(c)Notwithstanding KRS 45.229, any moneys remaining in the fund at the
close of the fiscal year shall not lapse but shall be carried forward into the
succeeding fiscal year to be used for the purposes set forth in this
section.
(d)Interest earned on money deposited to the credit of the fund shall be
retained in the fund and shall not lapse.
(e)Moneys deposited in the fund are hereby appropriated for the purposes in
this section.
(a)There is hereby established the Kentucky Rural Infrastructure
Improvement Program for the purpose of expediting and facilitating the
deployment of broadband service to individuals, businesses, agricultural
operations, and community access points in unserved areas by
reimbursing a portion of eligible pole replacement costs incurred by
eligible applicants.
(b)The office shall administer and provide staff assistance for the program
and shall be responsible for receiving, reviewing, and approving
applications for pole reimbursements.
(c)The office shall award pole reimbursements from moneys in the fund
created by subsection
(3)of this section until all moneys in the fund are
exhausted.
(d)No later than September 1, 2022, the office shall:
1. Promulgate administrative regulations under KRS Chapter 13A
necessary for the administration of this section;
2. Publish an application for pole replacement reimbursements that
shall require:
a. Information sufficient to establish the number, cost, and
eligibility of eligible pole replacements that qualify for
reimbursement;
b. Documentation sufficient to establish that the claimed eligible
pole replacements have been completed, including receipts
verifying the amount of eligible pole replacement costs paid by
the applicant;
c. The amount of program reimbursement requested in the
application and any grant funding or accounting information
required to justify the amount of the request;
d. i. A statement that the costs for which reimbursement is
requested have not been reimbursed through any other
state or federal broadband grant program.
ii. If the applicant is a recipient of funding from another
program, the statement shall include an explanation of
how the costs for which reimbursement is requested
exceed the pole replacement costs on which the original
award was predicated or that were reasonably anticipated
at the time of the original award;
e. A notarized statement from an officer or agent of the applicant
that the contents of the application are true and accurate and
that the applicant accepts the requirements of this section and
any promulgated administrative regulations as a condition of
receiving an award of program reimbursement; and
f. Any other information necessary for the office to comply with
any conditions on federal funding used in connection with the
program; and
3. Publish and maintain on its Web site:
a. Statistics on the number of applications received, processed,
and rejected by the office under the pole replacement program;
b. Statistics on the size, number, and status of reimbursements
awarded by the office under the pole replacement program,
including the pole owners and broadband providers receiving
reimbursements; and
c. The amount of money remaining in the fund.
(e)An applicant who incurs or pays the costs of an eligible pole replacement
to accommodate broadband facilities consistent with this section may
apply to the office for reimbursement.
(f)As a condition of receiving reimbursement under this subsection, an
applicant shall:
1. Certify its compliance with the requirements of this section;
2. Agree to comply with any requirements that the office determines to
be necessary conditions on federal funding used in connection with
the program;
3. Agree to refund, with interest at the applicable federal funds rate as
specified by KRS 355.4A-506, to the fund, any reimbursements or
portions of reimbursements received from the fund under this
subsection, if the office finds, upon substantial evidence and after
notice and opportunity to respond, that the recipient materially
violated any of the requirements agreed to under this section;
4. Agree that no funds awarded by the program will be used to meet
any cash match requirement under any other broadband program
administered by the Commonwealth or one
(1)of its subdivisions;
5. Agree to submit reports as the office may require regarding
broadband deployment facilitated by the program, which may
include reports demonstrating that an application that has received a
federally funded award is meeting or exceeding buildout
requirements contained in that award; and
6. Agree to not include in any rates or fees charged for its services any
eligible pole replacement costs that were reimbursed by the
program, paid for by a broadband provider, or funded by another
grant source.
(g)1. If the necessary information is not otherwise reasonably available to
the applicant, the applicant may request a pole owner performing an
eligible pole replacement to provide the number and costs of the
pole replacements, receipts verifying the amount of pole
replacement costs paid by the applicant, and confirmation that the
pole replacement costs were incurred to accommodate the
applicants attachment and not due to some other reason.
2. In the event the office requires additional information from an
applicant following the submission of an application to confirm the
eligibility of costs in an application that is in the possession of the
pole owner and not otherwise reasonably available to the applicant,
the applicant may also request that the pole owner assist with
providing the information as requested by the office.
3. A pole owner shall coordinate in good faith to provide the
information to the applicant, and may require reimbursement from
the broadband provider of its actual and reasonable administrative
expenses in connection with the coordination, which shall not
exceed five percent (5%) of the eligible pole replacement costs.
4. Administrative costs that a broadband provider reimburses to a pole
owner under this subsection are not eligible for reimbursement from
the fund as eligible pole replacement costs.
(h)Within sixty
(60)days of receipt of a completed application establishing
the eligibility of costs for reimbursement, and to the extent that moneys
are available in the fund, the office shall award the lesser of:
1. Five thousand dollars ($5,000) for each pole replaced; or
2. Fifty percent (50%) of the total amount incurred or paid by the
applicant for eligible pole replacement costs.
(i)Any application pending at the exhaustion of the moneys in the fund shall
be deemed denied but may be refiled if sufficient moneys are later made
available in the fund.
(j)No later than one
(1)year after the fund receives moneys for the purpose
of providing pole replacement reimbursements to qualified applicants, the
authority shall, on an annual basis, cause to be conducted an
independent audit of the office's administration of the fund for compliance
with the requirements of this section. This audit may be performed by
either the Auditor of Public Accounts or a certified public accountant in
conjunction with the annual audit of the authority. The authority shall
comply with the provisions of KRS 45.149 before entering into a contract
for audit services with a certified public accountant.
(5)A broadband provider's use of funds reimbursed under this subsection to pay
eligible pole replacement costs shall have no effect on the subsequent
ownership of any replacement pole purchases and installed by a pole owner
using the funds.