[Federal Register Volume 74, Number 219 (Monday, November 16, 2009)]
[Notices]
[Pages 58940-58944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27359]


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DEPARTMENT OF AGRICULTURE

Rural Utilities Service

RIN: 0572-ZA01
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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

Docket Number: 0907141137-91375-05
RIN: 0660-ZA28


Broadband Initiatives Program and Broadband Technology 
Opportunities Program

AGENCIES: Rural Utilities Service (RUS), Department of Agriculture, and 
National Telecommunications and Information Administration (NTIA), 
Department of Commerce.s

ACTION: Joint Request for Information.

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SUMMARY: RUS and NTIA announce the release of a joint Request for 
Information (RFI) seeking public comment on certain issues relating to 
the implementation of the Broadband Initiatives Program (BIP) and the 
Broadband Technology Opportunities Program (BTOP). This is the second 
joint RFI that the agencies have issued since the enactment of the 
American Recovery and Reinvestment Act of 2009 (Recovery Act), which 
established these broadband initiatives. The input the agencies expect 
to receive from this process is intended to inform the second round of 
funding. In particular, the agencies seek to gather information that 
will help them improve the broadband programs by enhancing the 
applicant experience and making targeted revisions to the first Notice 
of Funds Availability (NOFA), if necessary.

DATES: Comments must be received by November 30, 2009 at 5:00 p.m. 
Eastern Standard Time.

ADDRESSES: Interested parties are encouraged to file comments 
electronically via e-mail to [email protected]. Paper comments 
should be sent to: Broadband Initiatives Program, Rural Utilities 
Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW, 
Stop 1599, Washington, DC 20250, and Broadband Technology Opportunities 
Program, National Telecommunications and Information Administration, 
U.S. Department of Commerce, HCHB Room 4887, 1401 Constitution Avenue, 
NW, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: For general inquiries regarding BIP, 
contact David J. Villano, Assistant Administrator, Telecommunications 
Program, Rural Utilities Service, email: [email protected], telephone: 
(202) 690-0525. For general inquiries regarding BTOP, contact Anthony 
Wilhelm, Deputy Associate Administrator, Infrastructure Division, 
Office of Telecommunications and Information Applications, National 
Telecommunications and Information Administration, email: 
[email protected], telephone: (202) 482-2048.

SUPPLEMENTARY INFORMATION: On February 17, 2009, President Obama signed 
the Recovery Act into law.\1\ The Recovery Act establishes five 
statutory purposes: to preserve and create jobs and promote economic 
recovery; to assist those most impacted by the recession; to provide 
investments needed to increase economic efficiency

[[Page 58941]]

by spurring technological advances in science and health; to invest in 
transportation, environmental protection, and other infrastructure that 
will provide long-term economic benefits; and to stabilize state and 
local government budgets.\2\
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    \1\ American Recovery and Reinvestment Act of 2009, Pub. L. No. 
111-5, 123 Stat. 115 (2009).
    \2\ Recovery Act Sec.  3(a), 123 Stat. at 115-16.
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    Consistent with these statutory purposes, the Recovery Act provides 
RUS and NTIA with $7.2 billion to expand access to broadband services 
in the United States. In so doing, it recognizes the growing importance 
of access to broadband services to economic development and to the 
quality of life of all Americans. Specifically, the Recovery Act 
expands RUS's existing authority to make loans and provides new 
authority to make grants for the deployment and construction of 
broadband systems in rural America. The purpose of the expanded RUS 
broadband authority is to improve access to broadband in rural areas 
without service or that lack sufficient access to high-speed broadband 
service, and to facilitate economic development. In addition, the 
Recovery Act requires NTIA to establish BTOP, which makes available 
grants for deploying broadband infrastructure in unserved and 
underserved areas in the United States, enhancing broadband capacity at 
public computer centers, and promoting sustainable broadband adoption. 
In facilitating the expansion of broadband communications services and 
infrastructure, both programs will advance the objectives of the 
Recovery Act by spurring job creation and stimulating long-term 
economic growth and opportunity.
    On March 9, 2009, RUS and NTIA jointly issued an initial RFI 
seeking public comment on issues relating to the implementation of 
these programs. More than 1,000 public comments were received in 
response to the RFI and these comments were used to develop the NOFA, 
which was published in the Federal Register on July 9, 2009. The NOFA 
allocated up to $4 billion in funding for BIP and BTOP projects, 
including Broadband Infrastructure projects, Public Computer Center 
projects, and Sustainable Broadband Adoption projects. It also set 
forth key definitions that are used in the programs, established basic 
eligibility requirements and evaluation criteria, and provided 
additional information for applicants on how to obtain funding. In 
response to the NOFA, RUS and NTIA received over 2,200 applications 
requesting nearly $28 billion in funding, with projects reaching across 
all 50 states, five territories, and the District of Columbia.
    Before initiating the second round of funding, RUS and NTIA are 
requesting additional public comment on certain aspects of BIP and 
BTOP. RUS and NTIA seek to improve the applicant experience and 
strengthen the program impact of BIP and BTOP in achieving Recovery Act 
objectives. Please note that topics discussed in this request for 
information will not apply to the initial funding round, but will apply 
only to the second round.
    Matters To Be Considered: Information is being sought on the topics 
discussed herein. Interested parties are invited to submit comments for 
the record on these topics. Comments must be received by November 30, 
2009 at 5:00 p.m. Eastern Standard Time.

I. The Application and Review Process

A. Streamlining the Applications.

    For the first round of funding, applicants were required to 
complete a broadband infrastructure application, public computer center 
application, or sustainable broadband adoption application, depending 
on the type of project being proposed. For each application, the NOFA 
required applicants to respond to a number of questions and submit 
certain data. Those applicants considered highly qualified after 
completion of step one of the review process were required to submit 
additional information during a step two ``due diligence'' phase to 
substantiate the representations provided in the application.\3\ Some 
stakeholders, especially applicants completing the broadband 
infrastructure application, stated during the first round application 
process that completing the initial application was overly burdensome 
based on the questions asked and the number of attachments required. 
RUS and NTIA tentatively conclude that the application process should 
be streamlined. In what ways should RUS and NTIA streamline the 
applications to reduce the burden on applicants, while still obtaining 
the requisite information to fulfill the statutory requirements set 
forth in the Recovery Act? Should the agencies modify the two-step 
review process, and if so, how? Should certain attachments be 
eliminated, and if so, which ones? Should the agencies re-examine the 
use of a single application for applicants applying to both BIP and 
BTOP to fund infrastructure projects? How should NTIA link broadband 
infrastructure, public computer center and sustainable adoption 
projects through the application process?
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    \3\ 74 Fed. Reg. at 33107.
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1. New Entities.
    What type of information should RUS and NTIA request from new 
businesses, particularly those that have been newly created for the 
purpose of applying for grants under the BIP and BTOP programs? For 
example, should the agencies eliminate the requirement to provide 
historical financial statements for recently-created entities?
2. Consortiums and Public-Private Partnerships.
    Similarly, how should the application be revised to reflect the 
participation of consortiums or public-private partnerships in the 
application process? Should certain critical information be requested 
from all members of such groups, in addition to the designated lead 
applicant, to sufficiently evaluate the application? If so, what type 
of information should RUS and NTIA request?
3. Specification of Service Areas.
    The broadband infrastructure application required applicants to 
submit data on a census block level in order to delineate the proposed 
funded service areas. Some applicants found this requirement 
burdensome. What level of data collection and documentation should be 
required of applicants to establish the boundaries of the proposed 
funded service areas?
4. Relationship between BIP and BTOP.
    The Recovery Act prohibits a project from receiving funding from 
NTIA in areas where RUS has funded a project.\4\ Section VI.C.1.a.i of 
the NOFA required that infrastructure applications consisting of 
proposed funded service areas which are at least 75 percent rural be 
submitted to and considered under BIP, with the option of additional 
consideration under BTOP.\5\ According to the NOFA, NTIA will not fund 
such an application unless RUS has declined to fund it.\6\ RUS and NTIA 
are presently reviewing joint applications consistent with the process 
set forth in the NOFA. Should these kinds of rural infrastructure 
applications continue to be required to be submitted to RUS or should 
the agencies permit rural applications to be submitted directly to 
NTIA, without having to be submitted to RUS as well, and if so, how 
should NTIA and RUS proceed in a manner that

[[Page 58942]]

rewards the leveraging of resources and the most efficient use of 
Federal funds? Are there situations where it is better to give a loan 
to an applicant as opposed to a grant? Are there applicants for which a 
loan would not be acceptable, and if so, how should the programs 
consider them?
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    \4\ Recovery Act, div. A, tit. I, 123 Stat. at 118-19.
    \5\ 74 Fed. Reg. at 33113.
    \6\ Id. at 33105.
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B. Transparency and Confidentiality.

    Consistent with the Administration's policy and the Recovery Act's 
objective to ensure greater transparency in government operations, RUS 
and NTIA are considering whether they should permit greater access, 
consistent with applicable Federal laws and regulations, to certain 
applicant information to other applicants, policymakers, and the 
public, including state and tribal governments. Should the public be 
given greater access to application data submitted to BIP and BTOP? 
Which data should be made publicly available and which data should be 
considered confidential or proprietary? For example, RUS and NTIA 
tentatively conclude that the application's executive summary should be 
made publicly available for the second round of funding.

C. Outreach and Support.

    For the initial round of funding, RUS and NTIA provided multiple 
means of applicant support and outreach, including hosting national 
workshops and minority outreach seminars, publicly releasing an 
application guidance manual, posting responses to Frequently Asked 
Questions on www.broadbandusa.gov, and establishing a Help Desk that 
fielded thousands of telephone and e-mail inquiries. What method of 
support and outreach was most effective? What should be done 
differently in the next round of funding to best assist applicants?

D. NTIA Expert Review Process.

    During the first round of funding, NTIA utilized panels of at least 
three independent reviewers to evaluate BTOP applications.\7\ A number 
of stakeholders have questioned whether this is the most effective 
approach to evaluating BTOP applications. To further the efficient and 
expeditious disbursement of BTOP funds, should NTIA continue to rely on 
unpaid experts as reviewers? Or, should we consider using solely 
Federal or contractor staff?
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    \7\ Id. at 33107.
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II. Policy Issues Addressed in the NOFA

A. Funding Priorities and Objectives.

    Section IV.B of the NOFA establishes the funding limits for the 
first round of BIP and BTOP funding.\8\ In particular, RUS set aside 
approximately $2.4 billion in funding, with up to $1.2 billion 
available for last mile projects, up to $800 million available for 
middle mile projects and up to $325 million available for a national 
reserve. NTIA allocated up to $1.2 billion for broadband infrastructure 
projects, up to $50 million for public computer center projects, up to 
$150 million for sustainable broadband adoption projects, and up to 
$200 million as a national reserve. Many parties have publicly made 
suggestions as to how the NOFA could be modified to ensure that the 
Recovery Act funds make the greatest impact possible. RUS and NTIA 
welcome suggestions for targeted funding proposals and seek comment on 
how they can better target their remaining funds to achieve the goals 
of the Recovery Act. Below we set forth some examples of types of 
projects we could specifically target. We seek comment on these 
proposals as well as any others.
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    \8\ Id. at 33110.
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    RUS and NTIA request commenters that are proposing a more targeted 
approach for round 2 projects to support their proposal with 
quantitative estimates of the projected benefits of adopting such an 
approach. For example, commenters should quantify the impact of their 
proposal based on such metrics as the number of community anchor 
institutions committing to service, the number of last mile providers 
committing to utilize middle mile projects, the number of end users 
reached by the proposal, the number of new jobs created, directly and 
indirectly, and the projected increase in broadband adoption rates, as 
well as any other metrics necessary to justify the adoption of their 
proposal and ensure that the benefits of the Recovery Act are being 
realized. Commenters should explain the basis and method of calculation 
for the quantifications they provide.
1. Middle Mile ``Comprehensive Community'' Projects.
    Should RUS and/or NTIA focus on or limit round 2 funding on 
projects that will deliver middle mile infrastructure facilities into a 
group of communities and connect key anchor institutions within those 
communities? Ensuring that anchor institutions, such as community 
colleges, schools, libraries, health care facilities, and public safety 
organizations, have high-speed connectivity to the Internet can 
contribute to sustainable community growth and prosperity. Such 
projects also have the potential to stimulate the development of last 
mile services that would directly reach end users in unserved and 
underserved areas. Additionally, installing such middle mile facilities 
could have a transformative impact on community development by driving 
economic growth.
    Should we give priority to those middle mile projects in which 
there are commitments from last mile service providers to use the 
middle mile network to serve end users in the community? Should the 
agencies' goal be to fund middle mile projects that provide new 
coverage of the greatest population and geography so that we can be 
assured that the benefits of broadband are reaching the greatest number 
of people? Should we target projects that create ``comprehensive 
communities'' by installing high capacity middle mile facilities 
between anchor institutions that bring essential health, medical, and 
educational services to citizens that they may not have today? Should 
certain institutions, such as educational facilities, be given greater 
weight to reflect their impact on economic development or a greater 
need or use for broadband services? If so, what specific information 
should RUS and NTIA request from these institutions?
    To the extent that RUS and NTIA do focus the remaining funds on 
``comprehensive community'' projects, what attributes should the 
agencies be looking for in such projects? For example, are they most 
sustainable to the extent that they are public-private partnerships 
through which the interests of the community are fully represented? 
Should we consider the number of existing community anchor institutions 
that intend to connect to the middle mile network as well as the number 
of unserved and underserved communities and vulnerable populations 
(i.e., elderly, low-income, minority) that it will cover? How should 
RUS and NTIA encourage appropriate levels of non-Federal (State, local, 
and private) matching funds to be contributed so that the potential 
impact of Federal funds is maximized? In addition, should we consider 
the extent of the geographic footprint as well as any overlap with 
existing service providers?

[[Page 58943]]

2. Economic Development.
    Should RUS and/or NTIA allocate a portion of the remaining funds 
available under the BIP and BTOP programs to promote a regional 
economic development approach to broadband deployment? This option 
would focus the Federal broadband investment on communities that have 
worked together on a regional basis to develop an economic development 
plan. It would encompass a strategy for broadband deployment, and would 
link how various economic sectors benefit from broadband opportunities. 
Such a regional approach would seek to ensure that communities have the 
``buy-in,'' and the capacity, and the long-term vision to maximize the 
benefits of broadband deployment. Using this option, NTIA and RUS could 
target funding toward both the short term stimulus of project 
construction and the region's longer term development of sustainable 
growth and quality jobs. For instance, rather than look at broadband 
investments in both rural and urban communities as stand-alone actions, 
should RUS and NTIA seek applications for projects that would 
systematically link broadband deployment to a variety of complementary 
economic actions, such as workforce training or entrepreneurial 
development, through targeted regional economic development strategic 
plans? Should funds be targeted toward areas, either urban or rural, 
with innovative economic strategies, or those suffering exceptional 
economic hardship? Should states or regions with high unemployment 
rates be specifically targeted for funding?
3. Targeted Populations.
    Should RUS and NTIA allocate a portion of the remaining funds to 
specific population groups? For example, should the agencies revise 
elements of the BIP and BTOP programs to ensure that tribal entities, 
or entities proposing to serve tribal lands, have sufficient resources 
to provide these historically unserved and underserved areas with 
access to broadband service? Similarly, should public housing 
authorities be specifically targeted for funding as entities serving 
low-income populations that have traditionally been unserved or 
underserved by broadband service? How can funds for Public Computer 
Centers and Sustainable Broadband Adoption projects be targeted to 
increase broadband access and use among vulnerable populations? Should 
NTIA shift more BTOP funds into public computer centers than is 
required by the Recovery Act? In what ways would this type of targeted 
allocation of funding resources best be accomplished under the 
statutory requirements of each program? Should libraries be targeted as 
sites for public computer access, and if so, how would BTOP funding 
interact with e-Rate funding provided through the Schools and Libraries 
program?
4. Other Changes.
    To the extent that we do target the funds to a particular type of 
project or funding proposal, how if at all, should we modify our 
evaluation criteria? How should we modify the application to 
accommodate these types of targeted funding proposals? For example, 
should any steps be undertaken to adjust applications for satellite 
systems that provide nationwide service, but are primarily intended to 
provide access in remote areas and other places not served by landline 
or wireless systems? Are there any other mechanisms the agencies should 
be exploring to ensure remaining funds have the broadest benefit? How 
might the agencies best leverage existing broadband infrastructure to 
reach currently unserved and underserved areas? Are there practical 
means to ensure that subsidies are appropriately tailored to each 
business case? For example, should the agencies examine applicant cost 
and revenue estimates, and adjust the required match accordingly? Could 
elements of an auction-like approach be developed for a particular 
class of applications or region? If so, how would the agencies 
implement such an approach in a manner that is practical within program 
constraints and timeliness?

B. Program Definitions.

    Section III of the NOFA describes several key definitions 
applicable to BIP and BTOP, such as ``unserved area,'' ``underserved 
area,'' and ``broadband.''\9\ These definitions were among the most 
commented upon aspects of the NOFA.
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    \9\ Id. at 33108.
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    For example, a number of applicants have suggested that the 
definitions of unserved and underserved are unclear and overly 
restrictive; that they kept many worthy projects, particularly those in 
urban areas, from being eligible for support; that there was 
insufficient time to conduct the surveys or market analyses needed to 
determine the status of a particular census block area; and that they 
discouraged applicants from leveraging private investment for 
infrastructure projects. In what ways should these definitions be 
revised? Should they be modified to include a specific factor relating 
to the affordability of broadband service or the socioeconomic makeup 
of a given defined service area, and, if so, how should such factors be 
measured? Should the agencies adopt more objective and readily 
verifiable measures, and if so, what would they be? How should 
satellite-based proposals be evaluated against these criteria?
    With respect to the definition of broadband, some stakeholders 
criticized the speed thresholds that were adopted and some argued that 
they were inadequate to support many advanced broadband applications, 
especially the needs of large institutional users. Should the 
definition of broadband include a higher speed and should the speeds 
relate to the types of projects? Should the agencies incorporate actual 
speeds into the definition of broadband and forego using advertised 
speeds? If so, how should actual speeds be reliably and consistently 
measured?
    The NOFA defines ``remote area'' as an unserved, rural area 50 
miles from the limits of a non-rural area.\10\ The rural remote concept 
aims to address the prohibitive costs associated with broadband 
deployment in communities that are small in size and substantially 
distant from urban areas and their resources. The definition adopted in 
the NOFA was intended to ensure that the most isolated, highest-cost to 
serve, unserved communities could receive the benefit of up to 100 
percent grant financing. The geographic factor upon which an area was 
determined to be eligible was its distance from a non-rural area; in 
this case, 50 miles. RUS heard from many interested parties, including 
members of Congress, on this definition. Many believed it was overly 
restrictive, thereby eliminating too many areas that were not 50 miles 
or more from a non-rural area but were nonetheless a fair distance away 
and unserved. Comment is requested on the definition of remote area, as 
well as whether this concept should be a factor in determining award 
decisions. Should factors other than distance be considered, such as 
income levels, geographic barriers, and population densities?
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    \10\ Id. at 33109.
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C. Public Notice of Service Areas.

    Section VII.B of the NOFA allowed for existing broadband service 
providers to comment on the applicants' assertions that their proposed 
funded service areas are unserved or underserved.\11\ Some stakeholders 
have suggested that this rule may reduce incentives for

[[Page 58944]]

applicants to participate in the BIP and BTOP programs because of the 
risk that their applications may be disqualified from funding on the 
basis of information submitted by existing broadband service providers 
that they have no means to substantiate or rebut. How should the public 
notice process be refined to address this concern? What alternative 
verification methods could be established that would be fair to the 
applicant and the entity questioning the applicant's service area? 
Should the public notice process be superseded where data becomes 
available through the State Broadband Data and Development Grant 
Program that may be used to verify unserved and underserved areas? What 
type of information should be collected from the entity questioning the 
service area and what should be publicly disclosed?
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    \11\ Id. at 33122.
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D. Interconnection and Nondiscrimination Requirements.

    Section V.C.2.c of the NOFA establishes the nondiscrimination and 
interconnection requirements.\12\ These requirements generated a 
substantial amount of debate among applicants and other stakeholders. 
Although RUS and NTIA are not inclined to make significant changes to 
the interconnection and nondiscrimination requirements, are any minor 
adjustments to these requirements necessary? In particular, should they 
continue to be applied to all types of infrastructure projects 
regardless of the nature of the entity? Should the scope of the 
reasonable network management and managed services exceptions be 
modified, and if so, in what way? Is it necessary to clarify the term 
``interconnection'' or the extent of the interconnection obligation?
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    \12\ Id. at 33110.
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E. Sale of Project Assets.

    Section IX.C.2 of the NOFA generally prohibits the sale or lease of 
award-funded broadband facilities, unless the sale or lease meets 
certain conditions.\13\ Specifically, the agencies may approve a sale 
or lease if it is for adequate consideration, the purchaser agrees to 
fulfill the terms and conditions relating to the project, and either 
the applicant includes the proposed sale or lease in its application as 
part of its original request for grant funds or the agencies waive this 
provision for any sale or lease occurring after the tenth year from the 
date the grant, loan, or loan/grant award is issued. Some stakeholders 
have suggested that this rule is overly restrictive and is a barrier to 
participation in BIP and BTOP. Should this section be revised to adopt 
a more flexible approach toward awardee mergers, consistent with USDA 
and DOC regulations, while still ensuring that awardees are not 
receiving unjust enrichment from the sale of award-funded assets for 
profit?\14\
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    \13\ Id. at 33123.
    \14\ See, e.g., 15 C.F.R. Sec. Sec.  14.32-37; 7 C.F.R. Part 
3015.
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F. Cost Effectiveness.

    How should NTIA and RUS assess the cost effectiveness or cost 
reasonableness of a particular project? For example, in the context of 
infrastructure projects, how should we consider whether the costs of 
deploying broadband facilities are excessive? In BTOP, one of the 
Project Benefits that NTIA considers is ``cost effectiveness,'' when 
scoring an application. This is measured based on the ratio of the 
total cost of the project to households passed. However, such costs 
will necessarily vary based on the particular circumstances of a 
proposed project. For example, extremely rural companies typically have 
much higher construction costs than more densely populated ones. Also, 
geographic areas that experience extreme weather or are characterized 
by difficult terrain will dictate higher per household costs. 
Similarly, the technology that is chosen to provide the service (e.g., 
fiber vs. wireless) would influence the costs. And finally, smaller 
companies as measured by subscriber count would necessarily have a 
higher cost per subscriber than larger companies. How should the 
agencies take these various factors into consideration when evaluating 
broadband infrastructure projects? What evidence should we require from 
applicants to ensure that unnecessary costs have not been added to the 
project?

G. Other.

    What other substantive changes to the NOFA should RUS and NTIA 
consider that would encourage applicant participation, enhance the 
programs, and satisfy the goals of the Recovery Act?

III. Status

    Interested parties are invited to submit written comments. Written 
comments that exceed five pages should include a one-page executive 
summary. Submissions containing ten (10) or more pages of text must 
include a table of contents and an executive summary. Interested 
parties are encouraged to file comments electronically via e-mail to 
[email protected]. Parties submitting documents containing ten 
(10) or more pages are strongly encouraged to submit them 
electronically. Comments provided via e-mail may be submitted in one or 
more of the formats specified below. Comments must be received by 
November 30, 2009 at 5:00 p.m. Eastern Standard Time.
    Paper comments should be sent to: Broadband Initiatives Program, 
Rural Utilities Service, U.S. Department of Agriculture, 1400 
Independence Avenue, SW, Stop 1599, Washington, DC 20250, and Broadband 
Technology Opportunities Program, National Telecommunications and 
Information Administration, U.S. Department of Commerce, HCHB Room 
4887, 1401 Constitution Avenue, NW, Washington, DC 20230. Please note 
that all material sent via the U.S. Postal Service (including 
``Overnight'' or ``Express Mail'') is subject to delivery delays of up 
to two weeks due to mail security procedures. All written comments 
received will be posted at http://www.ntia.doc.gov/broadbandgrants/commentsround2.cfm. Paper submissions should also include a CD or DVD 
in HTML, ASCII, or Word format (please specify version). CDs or DVDs 
should be labeled with the name and organizational affiliation of the 
filer, and the name of the word processing program used to create the 
document.

Jonathan S. Adelstein,
Administrator, Rural Utilities Service.
    Dated: November 9, 2009.
Lawrence E. Strickling,
Assistant Secretary for Communications and Information.
[FR Doc. E9-27359 Filed 11-13-09; 8:45 am]
BILLING CODE 3510-60-S