Current through all regulations passed and filed through September 16, 2024
A challenging provider may submit a
challenge only after a complete application is posted on the program website by
development but no later than sixty-five days after the close of an application
period, or for an extended period as may be granted by the director. The
director may only grant a challenging provider an extended period to submit a
challenge to an application for good cause and no extended period may be longer
than fourteen days.
(A)
Only a challenging provider as defined by division (A)
of section 122.4030 of the Revised Code may submit a challenge.
(1)
A challenging
provider that is not a municipal electric utility must provide evidence
satisfactory to the director that:
(a)
It is providing service to the residential addresses
contained within the application; or
(b)
It is providing
service in the area directly adjacent to the residential addresses contained
within the application and plans to complete construction of tier two service
to the residential addresses within two years of the authority agreeing to
suspend an application.
(2)
A challenging
provider that is a municipal electric utility must provide evidence that is
provides tier two broadband service to an area within the eligible project that
is within the geographic area served by the municipal electric
utility.
(B)
In order for the authority to consider a challenge, the
challenging provider is to timely submit a complete challenge to both
development and the applicant by certified mail. A challenging provider is to
mail its challenge to development at the address provided for challenges on the
program website and to the applicant at the contact address listed for the
application on the program website. Only challenges submitted containing the
requirements for a complete challenge, including sufficient evidence, an email
address for notification, a certified mail tracking number for the challenge
that was mailed to the applicant, and a certificate acknowledging and agreeing
to responsibility to provide tier-two service within two years if the challenge
is upheld will be accepted by development for consideration. A challenge will
be deemed submitted on the date the challenge is received by development.
Challenges that are not received by the applicant being challenged on or about
the date the challenge is received by development may either be rejected or not
considered until the challenge is received by the applicant.
(C)
Development may
only consider submitted challenges that are a complete challenge. Only
non-material supplemental information, as determined in development's
discretion, may be requested from a challenging provider to cure information
submitted in a challenge that is not sufficient evidence to support the
challenge. Development will only request supplemental information through
written request sent by electronic mail. Failure of a challenging provider to
submit a complete challenge within the challenge period or to provide
supplemental information to development in the time and manner requested by
development will result in the challenge being rejected by the
authority.
(D)
Authority determination to suspend application or
reject challenge. Development will provide complete challenges to the authority
for its determination to suspend a challenged application in whole or in part
or to reject the challenge. The authority will make its determination and
notify the applicant and challenger of its decision in writing by electronic
mail within thirty days of receipt of a complete challenge by development in
accordance with section 122.4033 of the Revised Code and update the status of
the complete application on the program website accordingly. The authority will
only provide a determination to a challenging provider by certified mail if a
challenging provider explicitly and conspicuously requests a determination be
provided by certified mail in its complete challenge.
(1)
Suspended
application. If the authority upholds a complete challenge, in whole or in
part, it will suspend the application upon receipt of the return of a signed
copy of the authority's decision to suspend the application or portion of the
application from the challenging provider, certifying that it is providing tier
two service to the challenged addresses or acknowledging and accepting its
responsibility to complete the provision of tier two services within two years
from the date of the suspension. The determination to suspend the application
in whole or in part will provide an explanation of why the challenge is upheld
and describe what information is required for the applicant to revise its
application.
(a)
Revised application submission. An applicant that has its
application suspended may revise and resubmit its application to development as
directed in the authority's suspension determination within the time allowed by
division (A) of section 122.4034 of the Revised Code. The applicant will also
provide a copy of its revised application to the challenging provider by
electronic mail or certified mail. Development will review revised and
resubmitted applications upon receipt for completeness and public record
information. Development will publish the public record information contained
in revised and resubmitted applications on the program website following
completion of its review.
(i)
Failure of an applicant to respond to a suspension
determination by timely submitting a revised application is a withdrawal of the
portion of the application suspended. Failure of an applicant to provide all of
the information requested in the determination to suspend the application in
whole or in part is a failure to respond and a withdrawal of the suspended
portion of the application. A withdrawal of a suspended application is final
and the withdrawn part or whole of the application suspended may not be
resubmitted by the applicant in a future application period.
(ii)
Development may
request non-material supplemental information it determines is necessary for
the authority to review the revised application. Failure of an applicant to
timely respond to a request for supplemental information by development may be
determined to be a withdrawal, in whole or in part, of a revised application.
The need for supplemental information for the authority to review the revised
application may be good cause under division (A) of section 122.4034 of the
Revised Code, in development's discretion.
(b)
Development will
provide complete revised applications timely received to the authority for
review. The authority will review and issue a determination to accept the
revised application or uphold the challenge within the time allowed by section
122.4035 of the Revised Code. The determination will be provided in writing by
electronic mail to the applicant and challenging provider and the status of the
application will be updated on the program website.
(2)
Rejected
challenge. If the authority rejects a complete challenge, it will provide its
determination in writing by electronic mail to the challenging provider and
applicant within the time allowed by section 122.4033 of the Revised Code.
Development will update the status of the application on the program website
and provide the complete application to the authority for scoring. The
authority may score the application upon its determination to reject a
challenge or at its next meeting at which applications will be
scored.
(E)
De facto challenge
(1)
Where two
applications submitted in any one application period both propose to serve any
identical residential addresses and both applications would be approved for
funding but for the other serving identical addresses, the authority will
choose which application will be funded for those residential addresses. This
decision will be based upon the score each application receives. In the event
both applications score equally, the decision will be based on objective
distinguishing criteria determined in the authority's discretion. The applicant
that was not awarded a grant for the identical addresses may revise its
application to be considered for other addresses that are not part of the
identical set.
(2)
Where the authority has granted funds to serve
residential addresses in an application period, it shall not provide funds in a
later application period to serve the same residential addresses except where a
broadband provider previously awarded a grant for those addresses has been
found to be noncompliant under the Revised Code and division 122:30 of the
Administrative Code.
(3)
Where the authority has upheld a challenge to
residential addresses because a challenging provider already provides service
within the area, any application for the identical residential addresses will
be considered automatically challenged for those addresses that were part of
the prior challenge. The applicant will be required to provide evidence to the
authority that tier two broadband service is not available in the area to
receive funding.
(4)
Where the authority has upheld a challenge to
residential addresses because a challenging provider planned to provide service
within two years of the challenge:
(a)
Any application will be partially rejected for any of
the same residential addresses from the successful challenge during the two
years following the date the challenge is upheld.
(b)
If a challenging
provider fails to provide tier two service to the challenged addresses within
the two years following the date its challenge is upheld, then the authority
will consider those addresses eligible for project grants.
