Pursuant to and in compliance with Title 40, Article 15, and
Title 24, Article 4, C.R.S., as amended, notice of proposed rulemaking is
hereby given, including notice to the Attorney General of the State of Colorado
and to all persons who have requested to be advised of the intention of the
Executive Director of the Department of Regulatory Agencies to promulgate rules
applicable to local entities that may certify an application area as unserved
at the request of an applicant for a grant from the Broadband Deployment Board
(Board).
Specific Statutory Authority
The authority for these rules is section
40-15-509.5(8)(a)(III)(B),
C.R.S., as amended by HB20-1137 (2020).
Statement of Basis and Purpose
These rules are promulgated to specify the process for the
optional certification that is now available to every applicant who applies for
funding from the Board for broadband infrastructure projects in unserved areas
of Colorado. These rules set forth the process for local entities to collect,
review, and analyze quantitative data concerning the existence of broadband
service in the application area, so that they may determine whether
certification is appropriate. Certification by a local entity that an area is
unserved is additional evidence for an applicant to submit to the Board in
support of an application for broadband funding.
Summary of Rules
HB20-1137 amended the definitions in section
40-15-102 (17.5), C.R.S., as
follows:
a. A local entity is
defined as "elected members of a county or municipal government."
b. A municipal government is "a home rule or
statutory city, town, or city and county or a territorial charter
city."
For clarity, the Executive Director further amends the
following definitions:
a.
Broadband is defined as "reliable internet service that delivers download
speeds of at least 25 mbps and upload speeds of at least 3 mbps."
b. An internet speed survey is defined as "a
method of gathering information from a sample of people, traditionally with the
intention of translating the results proportionally to a larger population."
For purposes of this rulemaking, internet speed surveys should include
information regarding the type of service being offered at each address, and
the connection being utilized.
1.
Process and form to collect, review and analyze
quantitative data regarding the availability of broadband service in the
proposed area to be served
A.
Each applicant for funding shall submit a completed application according to
the requirements of the Board. In addition, an applicant may submit the
following new information:
i. The written
certification of a local entity pursuant to these rules.
B. 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. An unserved area, as defined
in section 40.15.102 , C.R.S, is "an area of the state that:
(I) Lies outside of municipal boundaries or
is a city with a population of fewer than seven thousand five hundred
inhabitants; and
(II) Consists of
households that lack access to at least one provider of a broadband network
that uses satellite technology and at least one provider of a broadband network
that uses non-satellite technology." It also means "any portion of a state or
interstate highway corridor that lacks access to a provider of a broadband
network."
C. The local
entity shall not provide written certification until after the local entity
has:
i. Provided public notice, including
notification to any incumbent provider, if any, and held a hearing on the
issue; and
ii. Collected,
solicited, and reviewed any quantitative data that it deems appropriate
regarding the availability of broadband service in the area that the applicant
proposes to serve.
D. 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 and the
Board, regarding standards concerning quantitative data.
For the purpose of this rule, "collect, solicit and review" of
quantitative date includes the following:
Receive form for written certification from applicant at a
publicly held board meeting; schedule the certification hearing for members of
the public and providers, and ensure any incumbent providers are aware of the
request and hearing date; gather necessary documents and resources for
certification hearing from both the Colorado Broadband Office (CBO) within the
Office of Information Technology and the applicant provider who submitted the
certification request; either deny or approve the certification request at the
certification hearing, citing the requirements for a written certification to
be considered for approval.
E. Upon receipt of a complete application,
the Broadband Fund will post the application on its website, and provide a
60-day comment period, per section
40-15-509.5(8)(a),
C.R.S., within which any interested party, including a local entity with
jurisdiction over the area to be served, may review and provide comment on the
application.
Rules for Certifying Application Areas by Local
Entities
The following processes and guidance provides a series of
steps that applicants and local entities should follow.
This certification will not be issued to a provider who is not
applying for state funding from the Board. The legislation specifically states
that applicants for grants from the Board are able to make this request.
Local entities do
NOT
have to approve a written certification requested by a provider
applicant.
Under section
40-15-509.5(8)(a)(II)(B),
C.R.S., applicants for grants may "submit to the Board the
written certification of a local entity as described in subsection (8)(a)(III)
of this section."
To consider a written certification request, the local entity
must collect, solicit, and review "any quantitative data that it deems
appropriate regarding 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 (DORA), in consultation with
the Office of Information Technology (OIT) created in section
24-37.5-103 and the Board,
regarding standards concerning quantitative data." If the local entity
certifies that an area is unserved after a hearing, that means that the local
entity has reasonable certainty that the application area does not have access
to broadband internet service of at least 25/3 Mbps.
Steps for Applicants:
2. Submit the following information to the
local entity:
b. Map of proposed project area using the CBO
Broadband Map showing other providers in the area.
c. A spreadsheet of households and their
respective mailing addresses of the project area.
d. An analysis of the communities residing in
the proposed project area. This analysis should include population information
and a justification as to why the applicant is requesting to serve the proposed
project area.
e. An attachment
indicating whether the area is or has been subject to any other upcoming state
or national funding or grants in the last 24 months.
3. Distribute the internet speed survey to
all household addresses (via their mailing address if different) in the
proposed project area on behalf of the local entity.
4. Determine if the local entity has approved
a written certification at a public certification hearing. Signatures must be
obtained from both the applicant and local entity authority.
5. Provide the signed written certification
to the Board by its deadline.
Process for Local Entity: Step one:
1. Receive written certification form from
applicant.
2. Schedule the
certification hearing no more than 30 days after the certification has been
received
3. Announce the date and
location of the hearing to members of the public and providers to ensure any
incumbent providers are aware of the request and hearing date. At the public
hearing, the local entity will review the data and either deny or approve the
certification request utilizing the requirements below for a written
certification to be considered for approval.
Step two:
1. Gather necessary documents and resources
for certification hearing:
a. A map of the
proposed project area and spreadsheet of household and mailing addresses
provided by applicant (see spreadsheet sample).
b. Designate a date range to collect data
from CBO internet speed survey (
https://gis.colorado.gov/speedtest/).
The CBO can support local entities analyzing the data by providing unbiased
feedback of the results, if requested.
c. Internet speed surveys distributed by the
applicant to mailing addresses for households in the proposed project area, and
submitted to the local entity, at least one (1) week prior to the local
entity's public certification hearing.
* Local entities may choose to request support from the CBO to
review internet speed surveys from proposed project area residents in
anticipation of the CBO providing speed results.
d. An analysis of communities impacted by the
proposed project provided to the local entity by the applicant, two(2) weeks
prior to the local entity's public hearing for the certification of the
applicant's project. This analysis should include population information and
the reason for the proposed project area to be served by the
applicant.
f. The
CBO may provide additional support as needed to determine no overbuilding will
take place.
2. Designate
an agenda for the public certification hearing, and include the following
information in announcement:
a. Date and
location of a public hearing for the certification hearing to be held as soon
as possible and no later than 30 days after the hearing announcement, or before
the publicly scheduled application review by the Board (a Calendar of public
meetings by the Board can be found at (
https://broadbandfund.colorado.gov/).
3. Topics that need to be to be
covered:
a. Introduction of the proposed
project area to be considered
c. Results of the
internet speed survey (of the household addresses with their respective mailing
addresses in the proposed project area. There needs to be an aggregate response
rate of at least 20% of addresses being proposed, covering a full geographic
distribution of the proposed project area to present evidence the area is
unserved. Internet speed survey results submitted using the CBO speed test will
be provided directly to the local entity by the CBO, with a copy to the
applicant.
d. Providers should
indicate which addresses in an applicant's proposed address list are
serviceable by the provider's network, and provide evidence of services being
provided and what is available, including speed and service plan data. If the
provider does not service the proposed project area, please indicate to the
local entity.
e. Post link to the
applicant's application on the local entity website, link to Broadband Fund
website, and have a paper copy available to the public of the applicant's
application for review in local entity headquarters. At the public hearing, the
local entity must either deny or approve a written certification. Signatures
must be provided by both the applicant and local entity authority.
The local entity should approve the request for certification
if the local entity determines, after a hearing and considering all the
evidence, that the application area does not have access to broadband internet
service of at least 25/3 Mbps.
Broadband Fund Written Certification Form
_____________________________
_____________________________
Name of Applicant Date of Certification Request
_____________________________
______________________________
Grant Amount Requested Local Entity Name
_____________________________
_______________________________
Proposed Project Area Grant Cycle
Map of Proposed Project Area (insert file with project
area)
Speed Test Survey
Hello,
(Applicant Name) is considering applying, or has applied for a
Colorado Broadband Deployment Board Grant to provide broadband services for
your community. [Insert local entity name] needs your help to find out more
about the speed of your internet connection and to determine if the area you
live in is unserved. An unserved area is "an area of the state that:
(I) Lies outside of municipal boundaries or
is a city with a population of fewer than seven thousand five hundred
inhabitants; and
(II) Consists of
households that lack access to at least one provider of a broadband network
that uses satellite technology and at least one provider of a broadband network
that uses non- satellite technology." It also means "also means any portion of
a state or interstate highway corridor that lacks access to a provider of a
broadband network."
If you have a home internet connection, please follow the
instructions below to take the internet speed test. If you do not have a home
internet connection, please inform us by contacting (local entity name) at
[PHONE] or [EMAIL]-and providing your address.
Internet Speed Test Instructions:
1) Make sure that no one else in the
household is using the Internet at the same time, especially not downloading
files, streaming video or playing online games.
2) At a minimum, you must know the advertised
download speed of your plan to participate in this test.
4) Click "Go" to
start the speed test.
5) Scroll
down to fill in the Location, Speed Test Results, and Additional Information.
Please indicate whether you are using a mobile/cellular or home connection
(Wifi, DSL, Cable, Fiber, Microwave). Please fill these out as accurately as
possible. You may want to have your internet service bill accessible to answer
the "Additional Information" questions as accurately as possible.
6) If you wish, you may redo the test at
multiple different times of the day and submit the survey each time (you may
know from experience that you have problems using the internet at a certain
time so ensure you do a test at one of these times.
If you do not have home internet service, please indicate the
reason on the sheet, such as:
a. There
is no home internet service available at any speed in my area
b. There is internet service available, but I
choose not to buy it.
If you have any questions regarding the internet speed test
please contact (local entity name) at [PHONE] or [EMAIL].
Sample Address Submission Template
|
Local Entity Written
Certification
|
|
Name of Applicant:
|
|
|
Name of Local Entity:
|
|
|
Address
|
City
|
State
|
Zip
|
Less than 10/1 Mbps service (yes or no)
|
Between 10/1 and 25/3Mbps service (yes or no)
|
Max download speed(Mbps)
|
Max upload speed (Mbps)
|
Location Type (household, business, community anchor
institution
|
Providers
|
|
478 SheetRock Road
|
Montrose
|
CO
|
81413
|
No
|
No
|
1000
|
1000
|
Household
|
Penny Wireless, GrowNet
|
