Current through Register Vol. 63, No. 9, September 1, 2024
(1) Application
Cycle and Process; Funding Notice. Each Broadband Program providing grant or
loan financial assistance will be subject to an application cycle and process
determined by the Department. However, Broadband Service Infrastructure
Programs shall each include a funding notice, a process for providing public
notice of pending applications, a public process for interested persons to
submit comments on pending applications, and a process for challenging an
application. Application cycle and process details will be described in
specific funding notices. Each Broadband Program application cycle will
conclude with notices of award(s) and ultimately financing contract(s) with
recipient(s). A notice of award shall be a final order in an other than
contested case proceeding and reviewable pursuant to ORS
183.480 with jurisdiction for
judicial review conferred by ORS
183.484.
(2) Geospatial Data. To comply with Oregon
Laws 2022, Chapter 60, Section 4, upon the Department's request, Broadband
Program applicants must provide geospatial data, including data that is
reported to the Federal Communications Commission, and other data as necessary
from the Internet service providers and entities with broadband infrastructure
in the state for the purpose of complying with federal funding requirements and
for determining eligibility for grants and loans issued by the Department. The
collected data is subject to the following:
(a) The collected information must be in a
form that can be viewed, edited, and mapped by the Department.
(b) The Department may require the data be
submitted in a specific, templated format.
(c) The Department may collect proprietary
information subject to a nondisclosure agreement. Proprietary information
subject to a nondisclosure agreement that is collected by the office under this
section (2) is exempt from public disclosure under ORS
192.355.
(3) Notice of Pending Applications and Notice
of Awards. For Broadband Service Infrastructure Programs, the Department may
use its Map Service described in OAR
123-047-0087 and the
Department's website to:
(a) Publish notice
of award recipients for projects providing for the development of Broadband
Service Infrastructure.
(b) Provide
public notice of pending applications.
(4) Applications Generally are Public
Records. Subject to Oregon Public Records Law exceptions, the Department may
publish Broadband Program applications in part or in whole on the Oregon
Broadband Office webpage.
(5)
Public Comment. The Department will solicit public comments based on the
contents of pending Broadband Service Infrastructure Programs applications.
(a) Public comments received in response to
an application may be considered as part of the evaluation of the application
at the Department's sole discretion.
(b) Public comments opposing an application
are separate and distinct from formal challenges, which are addressed in
section (6) of this rule.
(6) Challenge Process. Except as provided in
Section (6)(a) of this Rule below, the Department will establish a challenge
process for each Broadband Service Infrastructure Program. The process,
including the period of time for challenging applications submitted for a
Broadband Service Infrastructure Program, will be specified in the funding
notice or Program Handbook.
(a) If a
Broadband Service Infrastructure Program is funded with federal funds and such
federal funds or associated federal program provides for a challenge process,
the Department may elect not to establish an independent challenge process,
instead relying solely on the applicable federal challenge process to provide a
process for challenging an application.
(b) Applications for loans or grants funded
from the federal Coronavirus Capital Projects Fund (42 U.S.C. 804) that
are for broadband service infrastructure projects will be subject to challenge
by a broadband service provider as provided by Section 1a(1)(c), chapter 338,
Oregon Laws 2023.
(c) The
Department elects not to establish an independent challenge process, but
instead to rely on the available federal challenge process for applications for
loans or grants for broadband service infrastructure projects funded from the
federal Broadband Equity, Access, and Deployment (BEAD) Program established
under 47 U.S.C.
1702.
(d) Challenge submissions of Broadband
Service Infrastructure Program applications based on requisite broadband
service speeds may only be made by broadband service providers that would be
directly impacted by the project described in an application for the
development of broadband service infrastructure. A successful challenge
requires an entity making a formal challenge submission to effectively
demonstrate at least one of the following to the Department's satisfaction:
(A) The broadband service provider provides
broadband service at the requisite speeds to the location; or
(B) The broadband service provider has an
enforceable commitment to provide broadband service at the requisite speeds to
the location; and the commitment to provide broadband services at the requisite
speeds to the location is by a date that is earlier than the date the proposed
broadband service infrastructure will begin to provide broadband services, as
described in the application.
(e) Any individual or entity may make a
challenge submission where:
(A) A challenge
involves a credible allegation of a material misrepresentation made within a
submitted application; or
(B)
Another reason(s) is authorized and detailed in an accompanying funding notice
or Program Handbook.
(f)
The burden for proving a challenge claim is on the challenger individual or
entity, whose responsibility it will be to provide enough evidence to fully
support their claim to the Department's satisfaction.
(g) Unless specified otherwise in the funding
notice or Program Handbook, challenges submitted in response to an application
will remain attached to and be considered alongside an application for as long
as the application remains in consideration for funding.
(h) The Department may reject or otherwise
dismiss a challenge. The Department will notify a challenger in the event their
submission is rejected or otherwise dismissed.
(i) If a challenger proves a challenge claim
to the Department's satisfaction, including but not limited to effectively
demonstrating service availability at or above the speeds required for
eligibility, the Department will uphold the challenge and reject the
application or request the applicant modify the application.
(j) Abuse and disqualification. The
Department may dismiss a challenge if the Department determines, in its sole
discretion, that the individual or entity's challenge is an abuse of the
challenge process. Reasons for such a determination may include but are not
limited to the following:
(A) History of
meritless challenges;
(B)
Intentional repeated challenges of a single project;
(C) Multiple challenges containing no
credible supporting information; or
(D) Harassment of Department staff,
applicants, or subject community members.
(k) For entities and individuals found to
have abused the challenge process, the Department may deny their eligibility to
participate in, apply for, challenge, or appeal any current or future Broadband
Program.
(l) Dismissed challenges
will not be considered in the scoring or evaluation of applications.
Statutory/Other Authority: ORS
285A.075, ORS
285A.166, Oregon Laws 2020,
chapter 17, Section 5(2) (First Special Session) (SB 1603), Oregon Laws 2021,
chapter 524, 2022 Oregon Laws, chapter 60 & Oregon Laws 2023, chapter 338
(HB 3201)
Statutes/Other Implemented: Oregon Laws 2020, chapter 17,
Section 5(2) (First Special Session) (SB 1603), Oregon Laws 2021, chapter 524,
2022 Oregon Laws, chapter 60 & Oregon Laws 2023, chapter 338 (HB
3201)
