[Federal Register Volume 75, Number 14 (Friday, January 22, 2010)]
[Notices]
[Pages 3792-3820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1097]



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Part II





Department of Commerce





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National Telecommunications and Information Administration



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Department of Agriculture





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Rural Utilities Service



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Broadband Technology Opportunities Program; Notices

  Federal Register / Vol. 75 , No. 14 / Friday, January 22, 2010 / 
Notices  

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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket No. 0907141137-0024-06]
RIN 0660-ZA28


Broadband Technology Opportunities Program

AGENCY: National Telecommunications and Information Administration 
(NTIA), U.S. Department of Commerce.

ACTION: Notice of Funds Availability (NOFA) and solicitation of 
applications.

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SUMMARY: NTIA announces general policy and application procedures for 
the Broadband Technology Opportunities Program (BTOP or Program) that 
the agency established pursuant to the American Recovery and 
Reinvestment Act of 2009 (Recovery Act). BTOP provides grants for 
deploying broadband infrastructure in unserved and underserved areas of 
the United States, enhancing broadband capacity at public computer 
centers, and promoting sustainable broadband adoption projects. In 
facilitating the expansion of broadband communications services and 
infrastructure, BTOP advances the objectives of the Recovery Act to 
spur job creation and stimulate long-term economic growth and 
opportunity.

DATES: All applications for funding BTOP projects must be submitted 
between February 16, 2010, at 8 a.m. Eastern Standard Time (EST) and 
March 15, 2010, at 5 p.m. Eastern Daylight Time (EDT).

ADDRESSES: The application packages for electronic submissions will be 
available at http://www.broadbandusa.gov. See Supplementary Information 
for more details.

FOR FURTHER INFORMATION CONTACT: For general inquiries regarding BTOP 
or questions regarding this NOFA, contact Anthony Wilhelm, Director, 
BTOP, Office of Telecommunications and Information Applications, 
National Telecommunications and Information Administration, U.S. 
Department of Commerce (DOC), 1401 Constitution Avenue, NW., HCHB, Room 
4887, Washington, DC 20230; Help Desk e-mail: [email protected], 
Help Desk telephone: 1-877-508-8364. Additional information regarding 
BTOP may be obtained at http://www.ntia.doc.gov/broadbandgrants/. For 
inquiries regarding BTOP compliance requirements, including applicable 
Federal rules and regulations protecting against fraud, waste, and 
abuse, contact [email protected]. Additional information 
regarding compliance for BTOP may be obtained at http://www.broadbandusa.gov/compliance.htm.

    Authority:  This notice is issued pursuant to the American 
Recovery and Reinvestment Act of 2009, Pub. L. 111-5, 123 Stat. 115 
(2009).

SUPPLEMENTARY INFORMATION:
    Electronic submissions: Electronic submissions of applications will 
allow for the expeditious review of an applicant's proposal consistent 
with the goals of the Recovery Act. As a result, all applicants are 
required to submit their applications electronically at https://applyonline.broadbandusa.gov. The electronic application system will 
provide a date-and-time-stamped confirmation number that will serve as 
proof of submission. Please note that applications will not be accepted 
via paper, facsimile machine transmission, electronic mail, or other 
media format. Applicants, however, may request a waiver of these filing 
instructions pursuant to Section X.N. of this NOFA.
    Catalog of Federal Domestic Assistance (CFDA) Number: Broadband 
Technology Opportunities Program (BTOP)--11.557.

Additional Items in Supplementary Information

    I. Overview: Describes the broadband initiatives in the Recovery 
Act, the first round of funding, and an overview of the next round 
of funding.
    II. Funding Opportunity Description: Provides a more thorough 
description of BTOP and the funding priorities.
    III. Definitions: Sets forth the key statutory terms and other 
terms used in BTOP.
    IV. Award Information: Describes funding availability, grant 
terms, as applicable, and other award information.
    V. Eligibility Information and General Program Requirements: 
Establishes eligibility criteria, eligible and ineligible costs, and 
general program requirements.
    VI. Application and Submission Information: Provides information 
regarding how to apply, application materials, and the application 
process.
    VII. Application Review Information: Establishes the evaluation 
criteria for application review.
    VIII. Anticipated Announcement and Award Dates: Identifies the 
initial announcement date for certain awards and provides other 
information regarding BTOP.
    IX. Award Administration Information: Provides award notice 
information, administrative and national policy requirements, terms 
and conditions, and other reporting requirements for award 
recipients.
    X. Other Information: Sets forth guidance on funding, compliance 
with various laws, confidentiality, discretionary awards, and 
authorized signatures.

I. Overview

A. American Recovery and Reinvestment Act of 2009 (Recovery Act)

    On February 17, 2009, President Obama signed the Recovery Act into 
law.\1\ The essential goal of the Recovery Act is to provide a ``direct 
fiscal boost to help lift our Nation from the greatest economic crisis 
in our lifetimes and lay the foundation for future growth.'' \2\ 
Accordingly, the Recovery Act identifies five overall purposes: To 
preserve and create jobs and promote economic recovery; to assist those 
most impacted by the current economic recession; to provide investments 
needed to increase economic efficiency 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.\3\ The Recovery Act further instructs the President 
and the heads of Federal departments and agencies to manage and expend 
Recovery Act funds to achieve these five purposes, ``commencing 
expenditures and activities as quickly as possible consistent with 
prudent management.'' \4\
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    \1\ American Recovery and Reinvestment Act of 2009, Pub. L. No. 
111-5, 123 Stat. 115 (2009) (Recovery Act).
    \2\ Statement on Signing the American Recovery and Reinvestment 
Act of 2009, Daily Comp. of Pres. Doc., 2009 DCPD No. 00088, at 1 
(Feb. 17, 2009), http://fdsys.gpo.gov/fdsys/pkg/DCPD-200900088/pdf/DCPD-200900088.pdf.
    \3\ Recovery Act sec. 3(a), 123 Stat. at 115-16.
    \4\ See id. Sec. 3(b), 123 Stat. at 116.
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    Consistent with the purposes described above, the Recovery Act 
provides the U.S. Department of Agriculture's Rural Utilities Service 
(RUS) and the National Telecommunications and Information 
Administration (NTIA) with $7.2 billion to expand access to broadband 
services in the United States. In so doing, the Recovery Act recognizes 
the growing importance of access to broadband services to economic 
development and to the quality of life of all Americans.
    The Recovery Act provides $4.7 billion to NTIA to establish the 
Broadband Technology Opportunities Program (BTOP or Program) and 
directs that these funds be awarded by September 30, 2010. This amount 
represents a significant investment to advance President Obama's 
national broadband strategy. Of these funds, at least $200 million will 
be made available for competitive grants for

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expanding public computer center capacity; at least $250 million will 
be made available for competitive grants for innovative programs to 
encourage sustainable adoption of broadband services; and up to $350 
million will be made available to fund the State Broadband Data and 
Development Grant Program (Broadband Mapping Program) authorized by the 
Broadband Data Improvement Act.\5\ The Broadband Mapping Program is 
designed to support the development and maintenance of a nationwide 
broadband map for use by policymakers and consumers.\6\
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    \5\ Pub. L. 110-385, 122 Stat. 4096 (to be codified at 47 U.S.C. 
1301 et seq.).
    \6\ See State Broadband Data and Development Grant Program, 
Notice of Funds Availability and Solicitation of Applications, 74 FR 
32545 (July 8, 2009).
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B. Round One

    In response to the first Notice of Funds Availability (First NOFA), 
RUS and NTIA received almost 2,200 applications requesting nearly $28 
billion in funding for proposed broadband projects reaching all States, 
five territories, and the District of Columbia.\7\ When including about 
$10.5 billion in matching funds committed by the applicants, these 
applications represent more than $38 billion in proposed broadband 
projects. RUS and NTIA received applications from a diverse range of 
parties, including: State, tribal, and local governments; nonprofits; 
industry; small businesses; community anchor institutions such as 
libraries, universities, community colleges, and hospitals; public 
safety organizations; and other entities in rural, suburban, and urban 
areas. Parties submitted more than 830 applications jointly to RUS's 
Broadband Initiatives Program (BIP) and NTIA's BTOP, requesting nearly 
$12.8 billion in infrastructure funding. NTIA received an additional 
260 infrastructure applications that sought only BTOP funding, 
requesting more than $5.4 billion in grants for broadband 
infrastructure projects in unserved and underserved areas. Parties 
submitted more than 360 applications to NTIA requesting more than $1.9 
billion in grants from BTOP for public computer center projects. In 
addition, parties filed more than 320 applications with NTIA requesting 
nearly $2.5 billion in grants from BTOP for projects that promote 
sustainable demand for broadband services.
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    \7\ Notice of Funds Availability and Solicitation of 
Applications, 74 FR 33104 (July 9, 2009).
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    On December 17, 2009, NTIA announced the first set of awards out of 
the $1.6 billion that was allocated for the first round of funding. 
These awards, as well as additional awards announced by Secretary Locke 
on January 13, 2010, totaled approximately $137 million for investments 
in ten broadband projects benefitting ten States.\8\ Of these awards, 
$119 million was dedicated for Middle Mile projects; $15.9 million for 
Public Computer Center projects; and $2.4 million for Sustainable 
Broadband Adoption projects. Additional awards will be announced on a 
rolling basis.
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    \8\ White House Press Release, Vice President Biden Kicks Off 
$7.2 Billion Recovery Act Broadband Program (December 17, 2009), 
available at http://www.whitehouse.gov/the-press-office/vice-president-biden-kicks-72-billion-recovery-act-broadband-program. 
Department of Commerce Press Release, Commerce Secretary Gary Locke 
Announces $7.5 Million Investment to Increase Broadband Access in 
Los Angeles (January 13, 2010), available at http://www.commerce.gov/newsroom/pressreleases_factsheets/prod01_008797.
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C. Round Two

1. Funding Process
    The purpose of this NOFA is to describe the availability of BTOP 
funds for the second round of funding and set forth the application 
requirements for those entities wishing to participate in the Program. 
Applicants are permitted to apply to one or more of the project 
categories. Each application will be screened for initial eligibility. 
Those eligible applications that satisfy the statutory purposes and 
funding priorities will be prioritized and evaluated against objective 
evaluation criteria to determine whether an award may be merited. 
Applications that satisfy the BTOP priorities and score highly when 
evaluated against the objective evaluation criteria will advance to the 
due diligence stage of review, where NTIA may request additional 
information and adjustments to the proposal. From this pool of 
applications, NTIA will select awardees based on the selection factors. 
NTIA anticipates completing this round of funding as quickly as 
possible to maximize the stimulative effect of the Recovery Act. NTIA 
also is committed to transparency and fairness in the award process and 
will require rigorous reporting to ensure prudent stewardship of 
taxpayer funds.
2. Request for Information (RFI)
    To prepare for this round of funding, on November 10, 2009, RUS and 
NTIA released a second joint request for information seeking public 
comment on ways to enhance the applicant experience through targeted 
revisions to the First NOFA.\9\ RUS and NTIA received approximately 225 
comments from institutions and individuals on a wide range of topics, 
and these comments have played an important role in developing this 
NOFA. For further discussion and explanation of NTIA's reliance on the 
public comments in the policy decisions involved in BTOP, see the 
attached Policy Justification found in the Appendix at the end of this 
NOFA.
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    \9\ Joint Request for Information (RFI), 74 FR 58940 (Nov. 16, 
2009).
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3. Project Categories
    For this round of funding, NTIA will award grants in three 
categories of eligible projects: Comprehensive Community Infrastructure 
(CCI), Public Computer Centers (PCC), and Sustainable Broadband 
Adoption (SBA).\10\ The CCI category will focus on Middle Mile 
broadband infrastructure projects that offer new or substantially 
upgraded connections to community anchor institutions, especially 
community colleges. The PCC category will help expand public access to 
broadband service and enhance broadband capacity at entities that 
permit the public to use these computing centers, such as community 
colleges and public libraries.\11\ The SBA category will fund 
innovative projects that promote broadband demand, including projects 
focused on providing broadband education, awareness, training, access, 
equipment, or support, particularly among vulnerable population groups 
that traditionally have underutilized broadband technology.\12\
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    \10\ See Recovery Act Div. A, Tit. II, 123 Stat. at 128.
    \11\ Id. Div. A, Tit. II & sec. 6001(b)(3), 123 Stat. at 128, 
512-13.
    \12\ Id. Div. A, Tit. II & sec. 6001(b)(5), 123 Stat. at 128, 
513.
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    NTIA plans to award all remaining BTOP grants funded by the 
Recovery Act in this round of funding. Approximately $2.6 billion of 
program-level funding has been allocated to this NOFA by NTIA. NTIA 
intends to award approximately $2.35 billion for CCI projects, at least 
$150 million for PCC projects, and at least $100 million for SBA 
projects.
4. Changes From the First NOFA
    Based on the comments received in response to the second RFI and 
the experience gained from administering the first round of funding, 
NTIA is making a number of changes to the Program. The goals of these 
changes are to increase efficiency, sharpen the Program's funding 
focus, and improve the applicant experience.
    In the first round, RUS and NTIA issued a joint BIP/BTOP NOFA to

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promote coordination between these programs. The agencies gave 
applicants the option to file a single application for infrastructure 
projects for both programs. For the second round of funding, RUS and 
NTIA have decided to issue separate NOFAs for BIP and BTOP to better 
promote each agency's distinct objectives. The joint application 
process was burdensome for some applicants. Therefore, RUS and NTIA 
have eliminated the option of allowing applicants to file a single, 
joint BIP/BTOP application in the second funding round in favor of 
separate applications.
    NTIA has sought to bring further leverage to Federal funds by 
giving additional consideration to projects that propose to contribute 
a non-Federal cost share/match that equals or exceeds 30 percent of the 
total eligible costs of the project.
    In addition, NTIA is adopting a ``comprehensive communities'' 
approach to award BTOP grants for infrastructure projects that 
emphasize Middle Mile broadband capabilities and new or substantially 
upgraded connections to community anchor institutions to maximize the 
benefits of BTOP funds. In adopting this approach, NTIA has 
restructured the Broadband Infrastructure category of the First NOFA 
into the CCI category for this second round of funding.
    Further, NTIA has implemented other targeted changes to several 
Program provisions. In particular, NTIA has reduced the number of 
BTOP's eligibility factors to just three criteria--eligible entities, 
fully completed application, and matching--which will be used to 
determine whether an application is eligible for consideration. NTIA 
has further streamlined the eligibility review by removing the budget 
reasonableness and technical feasibility factors from the eligibility 
requirements, because these categories are more effectively evaluated 
during the expert review and due diligence phases of application 
consideration. NTIA also has changed the number of expert reviewers 
from at least three to at least two in order to make the expert review 
process as efficient as possible, without impacting the rigor of 
review. NTIA will review CCI applications according to the priorities 
established in Section II.B. Additionally, NTIA has clarified the 
process for requesting waivers from several key statutory and 
programmatic obligations, including the matching fund requirement, Last 
Mile coverage obligation, and restriction on the sale or lease of 
project assets.
    With respect to the application, NTIA will now collect the 
information most essential to project review in the application itself, 
with the option to collect additional data during the due diligence 
review, as needed. In addition, NTIA has made numerous adjustments to 
the online application system to streamline the intake of information 
and reduce applicant burden. In particular, NTIA has reduced the 
overall number of attachments to the applications. It also has 
separated the BTOP infrastructure application from the BIP 
infrastructure application and separated the PCC application from the 
SBA application. Moreover, it has eliminated the proposed funded 
service area mapping tool and modified the service area delineations 
from Census blocks to Census tracts and block groups. NTIA also has 
made it easier for applicants filing applications in multiple project 
categories to link these applications, in furtherance of NTIA's focus 
on comprehensive communities.

II. Funding Opportunity Description

A. Statutory Purposes

    Section 6001 of the Recovery Act establishes a national broadband 
service development and expansion program to promote five core 
purposes:
    a. To provide access to broadband service to consumers residing in 
unserved areas of the country;
    b. To provide improved access to broadband service to consumers 
residing in underserved areas of the country;
    c. To provide broadband education, awareness, training, access, 
equipment, and support to: (i) Schools, libraries, medical and 
healthcare providers, community colleges and other institutions of 
higher learning, and other community support organizations; (ii) 
organizations and agencies that provide outreach, access, equipment, 
and support services to facilitate greater use of broadband services by 
vulnerable populations (e.g., low-income, unemployed, aged); or (iii) 
job-creating strategic facilities located in State- or Federally-
designated economic development zones;
    d. To improve access to, and use of, broadband service by public 
safety agencies; and
    e. To stimulate the demand for broadband, economic growth, and job 
creation.\13\
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    \13\ See id. Sec. 6001(b), 123 Stat. at 512-13.
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B. BTOP Priorities

    All projects funded under BTOP must advance one or more of the five 
statutory purposes outlined above. The Program is designed to extend 
broadband access to unserved areas, improve access to underserved 
areas, and expand broadband access to a wide range of institutions and 
individuals, including vulnerable populations. It will seek to serve 
the highest priority needs for Federal investment--particularly 
projects that offer the potential for economic growth and job creation. 
The Program will support viable, sustainable, and scalable projects.
1. Comprehensive Community Infrastructure Projects
a. Background
    In the first funding round, NTIA solicited Broadband Infrastructure 
applications in two categories, Last Mile and Middle Mile. Last Mile 
projects were defined as any infrastructure project the predominant 
purpose of which is to provide broadband service to end users or end-
user devices. Middle Mile projects were defined as any broadband 
infrastructure project that does not predominantly provide broadband 
service to end users or to end-user devices and that may include 
interoffice transport, backhaul, Internet connectivity, or special 
access. Middle Mile projects funded to date in Round One also included 
expanding and enhancing broadband services for community anchor 
institutions such as schools, libraries, colleges and universities, 
medical and healthcare providers, public safety entities, and other 
community support organizations.
    Recognizing the significant importance of Middle Mile 
infrastructure to improving broadband capabilities for consumers 
residing in unserved and underserved areas of the nation, NTIA has 
awarded a significant portion of funds in the first round of funding to 
Middle Mile projects, particularly those that connect a significant 
number of community anchor institutions. Such projects provide 
substantial benefits, including enhancing broadband service for 
community anchor institutions, facilitating the development of Last 
Mile broadband services in unserved and underserved areas, and 
promoting economic growth.
b. CCI Funding Priorities
    In this round of funding, NTIA seeks to focus on Middle Mile 
projects by adopting a ``comprehensive communities'' approach to 
awarding BTOP infrastructure grants. Under this approach, priority will 
be given to CCI projects that include a Middle Mile component and 
satisfy certain

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additional considerations.\14\ This prioritization will be used for the 
sequencing of applications for the objective merit review performed by 
expert reviewers.\15\ In particular, the highest priority for merit 
review will be given to CCI applications that satisfy all of the 
criteria below. Note that the application evaluation process will 
continue to consider additional factors, including, for example, the 
degree to which the projects will benefit consumers residing in 
unserved or underserved areas, the participation of an Indian Tribe or 
socially and economically disadvantaged small business concern as 
defined under Section 8(a) of the Small Business Act (as modified by 
NTIA's adoption of an alternative small business concern size standard 
for use in BTOP),\16\ and the ability of a project to leverage funding 
from another Recovery Act program or other State or Federal development 
program.\17\ In order of importance, the CCI priority criteria are set 
forth as follows:
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    \14\ Consistent with the terms of the Recovery Act, in this 
funding round NTIA will not fund Middle Mile projects in areas that 
RUS has already funded with Middle Mile awards made through BIP.
    \15\ See Department of Commerce (DOC) Grants and Cooperative 
Agreements Interim Manual (Grants Manual), ch. 8, secs. B.1.c. and 
B.3 (June 21, 2007) (available at http://oam.ocs.doc.gov/GMD_updated-doc.html).
    \16\ 15 U.S.C. 637(a)(4). NTIA sought the Small Business 
Administration's approval to adopt a $40 million alternative small 
business size standard for BTOP. The Small Business Administration 
issued a letter approving the use of this alternative size standard 
of $40 million to define a small business concern for purposes of 
BTOP.
    \17\ See infra Section VII.A.1.
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    (1) Projects that will deploy Middle Mile broadband infrastructure 
with a commitment to offer new or substantially upgraded service to 
community anchor institutions. Those projects proposing to serve a 
significant number of community anchor institutions that have expressed 
a demand or indicated a need for access or improved access to broadband 
service will receive higher priority;
    (2) Projects that will deploy Middle Mile broadband infrastructure 
and incorporate a public-private partnership among government, non-
profit and for-profit entities, and other key community stakeholders, 
particularly those that have expressed a demand or indicated a need for 
access or improved access to broadband service;
    (3) Projects that will deploy Middle Mile broadband infrastructure 
with the intent to bolster growth in economically distressed areas;
    (4) Projects that will deploy Middle Mile broadband infrastructure 
with a commitment to serve community colleges that have expressed a 
demand or indicated a need for access or improved access to broadband 
service;
    (5) Projects that will deploy Middle Mile broadband infrastructure 
with a commitment to serve public safety entities that have expressed a 
demand or indicated a need for access or improved access to broadband 
service;
    (6) Projects that will deploy Middle Mile broadband infrastructure 
that includes (i) a Last Mile infrastructure component in unserved or 
underserved areas; or (ii) commitments or non-binding letters of intent 
from one or more Last Mile broadband service providers.\18\ For Last 
Mile infrastructure components in rural areas, however, the additional 
costs of the Last Mile component used to offer service to residential 
consumers and non-community anchor institutions may not exceed more 
than 20 percent of the total eligible costs of the project; and
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    \18\ Consistent with the terms of the Recovery Act, in this 
funding round NTIA will not fund Last Mile projects in areas that 
RUS has already funded with Last Mile awards made through BIP.
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    (7) Projects that will deploy Middle Mile broadband infrastructure 
and propose to contribute a non-Federal cost match that equals or 
exceeds 30 percent of the total eligible costs of the project.
    To the extent that a CCI applicant with a Middle Mile component 
does not address all of the criteria set forth above (i.e., criteria 
(1)-(7)), NTIA will prioritize those applications remaining for merit 
review in the order that they satisfy the most highly-ranked criteria 
(i.e., applications satisfying criteria (1)-(6) will be sequenced for 
merit review, then applications satisfying (1)-(5), then (1)-(4), then 
(1)-(3), then (1)-(2) respectively, and, finally, applications that 
satisfy only the first criterion). All other CCI applicants with a 
Middle Mile component, that is, those that do not satisfy the first 
criterion identified above, will be next in priority for merit review.
c. ``Comprehensive Communities'' Policy Rationale
    The ``comprehensive communities'' approach, with its focus on the 
deployment of Middle Mile broadband facilities and the provision of new 
or substantially upgraded connections to community anchor institutions 
as its centerpiece, will provide a number of benefits to the public and 
taxpayers. ``Comprehensive communities'' projects can leverage 
resources and better ensure sustainable community growth and 
prosperity. These projects also can create consumer demand and lay the 
foundation for the ultimate provision of reasonably priced end-user 
broadband services in unserved and underserved communities. Open and 
nondiscriminatory CCI projects funded by BTOP will enable other service 
providers to serve the community.\19\ Once Middle Mile facilities are 
built, the costs of providing services to a broad array of end users 
are reduced. Much like the interstate highways that link together the 
nation's roads and streets, Middle Mile broadband facilities play a 
critical role in the healthy functioning of the nation's broadband 
infrastructure and are a necessary foundation for the ultimate 
provision of affordable end-user broadband services in unserved and 
underserved communities.
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    \19\ See Recovery Act sec. 6001(j), 123 Stat. at 515.
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    Expanding Middle Mile broadband service not only enhances the 
availability and affordability of end-user broadband connectivity for 
consumers and businesses, it also increases the effectiveness of 
community anchor institutions in fulfilling their missions. Schools, 
libraries, colleges and universities, medical and healthcare providers, 
public safety entities, and other community support organizations 
increasingly rely on high-speed Internet connectivity to serve their 
constituencies and their communities. Expanding broadband capabilities 
for community anchor institutions will result in substantial benefits 
for the entire community, delivering improved education, healthcare, 
and economic development.
    CCI projects are also job-intensive and pave the way for a ripple 
effect of economic development throughout the communities they touch. 
Focusing the awards in this funding round on CCI projects that provide 
high-speed Middle Mile networks to connect community anchor 
institutions, including community colleges, or benefit consumers 
residing in unserved or underserved areas will maximize the benefits of 
Recovery Act dollars and lay a foundation for economic development for 
years to come.\20\
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    \20\ See National Economic Council, Recovery Act Investments in 
Broadband: Leveraging Federal Dollars to Create Jobs and Connect 
America (Dec. 2009), available at http://www.whitehouse.gov/sites/default/files/20091217-recovery-act-investments-broadband.pdf.
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d. Relationship to BIP
    Although BIP and BTOP no longer will offer a joint application, RUS 
and NTIA continue to collaborate to maximize the impact of available 
Federal funding, to best leverage the experience and expertise of each 
agency, and to avoid geographic overlap

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in projects funded by the two agencies (as required by the Recovery 
Act).\21\ To accomplish these objectives, NTIA strongly recommends that 
CCI applicants that are currently RUS loan or grant recipients as well 
as any CCI applicant whose project will include a Last Mile service 
area that is at least 75 percent rural apply to BIP for funding. 
Applications from such applicants will not be viewed favorably by NTIA 
and will not be a funding priority.
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    \21\ Recovery Act Tit. I, 123 Stat. at 118.
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e. Exclusive Last Mile Projects
    As explained above, priority will be given to CCI projects that 
include a Middle Mile component. While a CCI project may exclusively 
contain a Last Mile component, it will only be considered for merit 
review and funding after all projects with a Middle Mile component have 
been considered.
2. Public Computer Centers (PCC)
    In this funding round, consistent with the Recovery Act, NTIA will 
fund PCC projects. These projects provide broadband access to the 
general public or a specific vulnerable population and must either 
create or expand a public computer center or improve broadband service 
or connections at a public computer center, including those at 
community colleges, that meets a specific public need for broadband 
service. PCC projects are a logical complement to CCI projects, because 
they are uniquely positioned to serve many members of a community with 
computer equipment, computer training, job training, and access to job 
and educational resources that might not otherwise be available.
3. Sustainable Broadband Adoption (SBA)
    Consistent with the Recovery Act and the promotion of BTOP's five 
core objectives, NTIA also will fund SBA projects. The SBA program is 
designed to fund innovative projects that promote broadband demand, 
especially among vulnerable population groups where broadband 
technology traditionally has been underutilized. Broadband technology 
has reshaped the way our nation functions, and NTIA recognizes that 
broadband adoption projects strive to ensure that as much of the 
population as possible has opportunities, abilities, and resources to 
thrive in today's society. With projects focusing on broadband 
awareness, access, training, and education, barriers to broadband 
adoption can be overcome, fostering educational and business 
opportunities and a more competitive country as a whole. NTIA, 
therefore, seeks SBA projects that, after establishing a subscribership 
baseline in a given community, demonstrate a clear ability to measure 
and sustain the expected increase in broadband adoption without ongoing 
Federal grant assistance, so that the nation will continue to see the 
benefits of these projects well after the period of performance for the 
grant award has ended.

C. Application Review and the Selection Process

1. Initial Review
    NTIA will conduct an initial review of applications to determine 
whether they meet the eligibility requirements set forth in Section 
V.A. through V.C. of this NOFA. These requirements are mandatory, and 
applicants that fail to meet them will not have their applications 
considered further.
2. Scoring Applications
    Subsequent to this initial eligibility review, applications will be 
separated into the three project categories. For PCC and SBA projects, 
applications will receive an Evaluation Criteria Review score by at 
least two objective expert reviewers who may be Federal employees or 
non-Federal persons. For CCI projects, program staff will prioritize 
the applications for the Evaluation Criteria Review based on the BTOP 
priorities set forth in Section II.B., and then the applications will 
be evaluated in priority order by at least two objective expert 
reviewers who may be Federal employees or non-Federal persons. No 
consensus advice will be provided by the non-Federal expert reviewers.
    Reviewers will be selected based on their expertise in: (i) 
Analyzing a business or organizational model pursuant to BTOP purposes; 
(ii) designing, funding, constructing, or operating broadband networks 
or public computer centers; (iii) broadband-related outreach, training, 
or education; (iv) innovative programs to increase the demand for 
broadband services; or (v) other broadband-related functions or 
activities. Reviewers will evaluate applications against the evaluation 
criteria provided in this NOFA and independently score each 
application. Reviewer scores will be averaged and NTIA will establish 
thresholds that will be used to determine which applications are 
considered ``highly qualified.'' Highly qualified applications may be 
considered further for an award by NTIA Program staff and given a ``due 
diligence'' review. For CCI projects, priority in due diligence 
processing will be given to applications that best conform to BTOP 
priorities as expressed in Section II.B.1.b of this NOFA.
3. State and Tribal Consultation
    The Recovery Act authorizes NTIA to consult with States, 
territories, possessions, and the District of Columbia (``States'') 
regarding the identification of unserved and underserved areas within 
their borders and the allocation of grant funds to projects in or 
affecting their State.\22\ After the application deadline, NTIA will 
invite each State, via its Governor, to provide input on those 
geographic areas within the State for which NTIA should give priority 
in selecting projects for funding. States may, if they wish, comment on 
specific BTOP applications that propose to serve areas within their 
jurisdiction, regardless of the size or geographic scope of the project 
and, at their discretion, provide an explanation for why certain 
applications meet the greatest needs of the State. NTIA also will 
extend the invitation to tribal entities to comment upon applications 
that propose to serve tribal communities in an effort to fund projects 
that best meet the needs of their tribal lands.
---------------------------------------------------------------------------

    \22\ Recovery Act sec. 6001(c), 123 Stat. at 513.
---------------------------------------------------------------------------

    NTIA will share data that are available on the publicly searchable 
application database with each relevant State and tribe. States and 
tribes that wish to review additional information regarding 
applications proposing to serve areas within their jurisdiction may 
request such information from applicants directly. States and tribes 
will not be required to rank or comment on BTOP applications in order 
for applications affecting their areas to receive funding. The input of 
States and tribes is consultative in nature and, while extremely 
valuable, constitutes only one among several factors the Selecting 
Official, the Assistant Secretary, weighs when evaluating applications. 
States or tribes will not have the ability to veto any particular 
project. States and tribes will have no less than 20 calendar days from 
the date of notification to submit their comments to NTIA. NTIA will 
make the comments of the States and tribes publicly available at http://www.broadbandusa.gov. Accordingly, States and tribes should not 
include in their comments to NTIA any information that is deemed 
confidential and proprietary.
4. Due Diligence Review
    During due diligence review, applicants may be asked to submit 
additional information, as appropriate,

[[Page 3797]]

to clarify or to further substantiate the representations made in their 
applications. The supplemental information, along with all information 
submitted with the application, will be reviewed and analyzed by NTIA 
Program staff to confirm eligibility and evaluate the applications with 
respect to general Program requirements, the appropriate Federal share 
of the project, evaluation criteria, and selection factors. Applicants 
whose supporting documents are not timely filed or who do not 
adequately substantiate the representations in their applications may 
be rejected. NTIA may, at its discretion, request supplemental 
documentation before deciding to reject such applications and re-
evaluate the application package based on all of the information 
presented.
    At any time during the application review process, NTIA reserves 
the right to discuss with the applicant specific modifications to the 
application to resolve any differences that may exist between the 
applicant's original request and NTIA's determination of eligible costs 
and funding priorities, including, for example, the right to adjust the 
Federal share of the project. Note that it is NTIA's intent to fund 
only the portion of the project that satisfies Program purposes and is 
justified based on an analysis of anticipated costs and revenues. 
Specifically, pursuant to the Recovery Act requirement that applicants 
demonstrate that a project would not have been implemented during the 
grant period without Federal assistance, NTIA may seek to adjust the 
amount of funds made available for the Federal share of the project to 
a level warranted based on this ``but for'' test.\23\ Not all 
applicants contacted necessarily will receive a BTOP award. Upon 
completion of due diligence, NTIA Program staff will summarize their 
analysis for each application reviewed.
---------------------------------------------------------------------------

    \23\ See Recovery Act sec. 6001(e)(3), 123 Stat. at 514.
---------------------------------------------------------------------------

5. The Selection Process
    The Director of BTOP (BTOP Director) will prepare and present a 
package or packages of recommended grant awards to the Associate 
Administrator for the Office of Telecommunications and Information 
Applications (OTIA Associate Administrator), or his/her designee, for 
review and approval. The BTOP Director's recommendations and the OTIA 
Associate Administrator's review and approval will consider the 
following selection factors:
    a. The Evaluation Criteria Review score of the objective expert 
reviewers;
    b. The analysis of NTIA Program staff;
    c. Satisfaction of the statutory purposes and BTOP priorities set 
forth in Section II.;
    d. The extent to which the non-Federal cost match equals or exceeds 
30 percent of the total eligible costs of the project;
    e. The geographic distribution of the proposed grant awards (e.g., 
ensuring that, to the extent practical, NTIA awards not less than one 
grant in each State as set forth in the Recovery Act);
    f. The range of technologies and uses of the technologies employed 
by the proposed grant awards;
    g. Avoidance of redundancy, duplication, and conflicts with the 
initiatives of other Federal agencies, including Department of 
Agriculture loan and grant programs for broadband services, applicable 
universal service programs authorized by the Federal Communications 
Commission, and, to the extent practical, avoidance of unjust 
enrichment; \24\
---------------------------------------------------------------------------

    \24\ Recovery Act sec. 6001(h)(2)(D), 123 Stat. at 515.
---------------------------------------------------------------------------

    h. The availability of funds;
    i. If applicable, the comments of States, including, but not 
limited to, such comments as described in their application for the 
Broadband Mapping Program or as subsequently provided to NTIA either on 
their own or along with the submission of State-level broadband maps; 
\25\ and
---------------------------------------------------------------------------

    \25\ Consistent with the Recovery Act, the Broadband Mapping 
Program provides participating States the opportunity to identify 
unserved and underserved areas in their State.
---------------------------------------------------------------------------

    j. If applicable, the comments of tribal entities.
    Upon approval of the OTIA Associate Administrator or designee, the 
BTOP Director's recommendations then will be presented to the Selecting 
Official. The Assistant Secretary selects the applications for grant 
awards, taking into consideration the BTOP Director's and the OTIA 
Associate Administrator's, or his or her designee's, recommendations 
and the degree to which the application package, taken as a whole, 
satisfies the selection factors described above and the Program's 
statutory purposes and priorities as set forth in Sections II of this 
NOFA. Awards will be made on a rolling basis subject to the 
availability of funds. Unsuccessful applicants will be notified in 
writing.

III. Definitions

    The terms and conditions provided in this NOFA are applicable to 
and for purposes of this NOFA only.
    Applicant means an entity requesting approval of an award under 
this NOFA.
    Assistant Secretary means the Assistant Secretary for 
Communications and Information, National Telecommunications and 
Information Administration, Department of Commerce, or the Assistant 
Secretary's designee.
    Award means a grant made under this NOFA by NTIA.
    Awardee means a grantee.
    Broadband means providing two-way data transmission with advertised 
speeds of at least 768 kilobits per second (kbps) downstream and at 
least 200 kbps upstream to end users, or providing sufficient capacity 
in a Middle Mile project to support the provision of broadband service 
to end users.
    BTOP means the Broadband Technology Opportunities Program, 
administered by NTIA, under the Recovery Act.
    Build-out means the construction or improvement of facilities and 
equipment as specified in the application.
    Community anchor institutions means schools, libraries, medical and 
healthcare providers, public safety entities, community colleges and 
other institutions of higher education, and other community support 
organizations and agencies that provide outreach, access, equipment, 
and support services to facilitate greater use of broadband service by 
vulnerable populations, including low-income, the unemployed, and the 
aged.
    Comprehensive Community Infrastructure (CCI) project means an 
infrastructure project that focuses primarily on providing new or 
substantially upgraded connections to community anchor institutions.
    Economically distressed area means an area that has: (i) A per 
capita income of 80 percent or less of the national average; and (ii) 
an unemployment rate that is, for the most recent 24-month period for 
which data are available, at least one percent greater than the 
national average unemployment rate.\26\
---------------------------------------------------------------------------

    \26\ This definition is derived from regulations adopted by the 
Economic Development Administration, U.S. Department of Commerce, 
regarding the Public Works and Economic Development Act of 1965, as 
amended. See 13 CFR 301.3.
---------------------------------------------------------------------------

    Forecast period means the time period used by NTIA to determine if 
an application is financially feasible. Financial feasibility of an 
application is based on eight-year projections.
    GAAP means generally accepted accounting principles.
    Grant agreement means the agreement between NTIA and the grantee 
for grants awarded under this NOFA, including

[[Page 3798]]

any amendments thereto, setting forth the binding terms and conditions 
relating to Federal funding under BTOP. Sample grant agreements are 
available for review at http://www.broadbandusa.gov or http://www.ntia.doc.gov.
    Grant funds means Federal funds provided pursuant to a grant made 
under this NOFA.
    Grantee means the prime recipient of a grant under this NOFA.
    Last Mile means those components of a CCI project that provide 
broadband service to end-user devices through an intermediate point of 
aggregation. That is, in most cases, the Last Mile connection goes from 
the end-user device through an intermediate point of aggregation (i.e., 
a remote terminal, fiber node, wireless tower, or other equivalent 
access point) to a primary IP routing entity in a centralized facility 
(i.e., in the central office, the cable headend, the wireless switching 
station, or other equivalent centralized facility). The Last Mile also 
includes equivalent services that, solely because of close proximity 
between the customer and centralized facility, are routed directly to 
the centralized facility. The Last Mile will terminate at, and include, 
the initial customer-facing router or aggregation switch in the 
centralized facility (e.g., a DSLAM, CMTS, RNC, or equivalent) that is 
utilized to deliver Last Mile broadband service.
    Last Mile service area means the service area of a Last Mile 
component of a CCI project, composed of one or more contiguous Census 
block groups \27\ or tracts,\28\ where the applicant is requesting BTOP 
funds to provide broadband service to end-user devices through an 
intermediate point of aggregation and terminating at the initial 
customer-facing router or aggregation switch in the centralized 
facility used to deliver the Last Mile broadband service.
---------------------------------------------------------------------------

    \27\ A Census block group is a cluster of Census blocks having 
the same first digit of their four-digit identifying numbers within 
a Census tract. A Census block group is the next level above Census 
block in the geographic hierarchy.
    \28\ Census tracts are small, relatively permanent statistical 
subdivisions of a county. Census tracts are delineated for most 
metropolitan areas (MAs) and other densely populated counties by 
local Census statistical areas committees following Census Bureau 
guidelines (more than 3,000 Census tracts have been established in 
221 counties outside MAs). Census tracts usually have between 2,500 
and 8,000 persons and, when first delineated, are designed to be 
homogeneous with respect to population characteristics, economic 
status, and living conditions. Census tracts do not cross county 
boundaries. The spatial size of Census tracts varies widely 
depending on the density of settlement. Census tract boundaries are 
delineated with the intention of being maintained over a long time 
so that statistical comparisons can be made from Census to Census. 
However, physical changes in street patterns caused by highway 
construction, new development, or other reasons may require 
occasional revisions; Census tracts occasionally are split due to 
large population growth, or combined as a result of substantial 
population decline. See the Census Bureau's Web site at http://www.census.gov for more detailed information on its data gathering 
methodology.
---------------------------------------------------------------------------

    Middle Mile means those components of a CCI project that provide 
broadband service from one or more centralized facilities, (i.e., the 
central office, the cable headend, the wireless switching station, or 
other equivalent centralized facility) to an Internet point of 
presence. The Middle Mile includes, among other things, the centralized 
facilities and all of the equipment in those facilities, except for any 
equipment that would qualify as part of a Last Mile component as 
defined in this NOFA.
    Middle Mile service area means the project service area, composed 
of one or more contiguous Census block groups or tracts, where the 
applicant is requesting BTOP funds to provide broadband service from 
one or more centralized facilities, (i.e., the central office, the 
cable headend, the wireless switching station, or other equivalent 
centralized facility) to an Internet point of presence.
    Pre-application expense means any reasonable expense incurred after 
the release of this NOFA up to the issuance of the grant award from 
NTIA to prepare an application. These expenses include engineering 
costs, accountant or other consultant fees, and costs related to 
developing the proposal. Lobbying costs and contingency fees are not 
included as pre-application expenses.
    Proposed funded service area means the total service area of a CCI 
project where broadband service will be provided.
    Public computer center means a place, including but not limited to 
community colleges, libraries, schools, youth centers, employment 
service centers, Native American chapter houses, community centers, 
senior centers, assistive technology centers for people with 
disabilities, community health centers, and Neighborhood Network 
Centers in public housing developments, that provide broadband access 
to the general public or a specific vulnerable population, such as low-
income, unemployed, aged, children, minorities, and people with 
disabilities.
    Recipient means any entity that receives Recovery Act funds 
directly from the Federal government (including Recovery Act funds 
received through a grant) other than an individual. This includes a 
State that receives Recovery Act funds.
    Recovery Act means the American Recovery and Reinvestment Act of 
2009, Pub. L. 111-5, 123 Stat. 115 (2009).
    Rural area means any area, as confirmed by the latest decennial 
Census of the U.S. Census Bureau, that is not located within: (i) A 
city, town, or incorporated area that has a population of greater than 
20,000 inhabitants; or (ii) an urbanized area contiguous and adjacent 
to a city or town that has a population of greater than 50,000 
inhabitants. For purposes of the definition of rural area, an urbanized 
area means a densely populated territory as defined in the latest 
decennial Census of the U.S. Census Bureau.
    Socially and Economically Disadvantaged Small Business Concern 
means a firm, together with its controlling interests and affiliates, 
with average gross revenue not exceeding $40 million for the preceding 
three years, and that meets the definition of a socially and 
economically disadvantaged small business concern under the Small 
Business Act.\29\
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 637(a)(4) (as modified by the Small Business 
Administration's approval of NTIA's request to adopt an alternative 
small business concern size standard for use in BTOP).
---------------------------------------------------------------------------

    State means, for purposes of BTOP, a State or political subdivision 
thereof, the District of Columbia, or a territory or possession of the 
United States.
    Sub-recipient means an entity that expends Recovery Act funds 
received through a subaward from a recipient to carry out a Federal 
program but does not include an individual who is a beneficiary of such 
a program.\30\
---------------------------------------------------------------------------

    \30\ Implementing Guidance for Reports on Use of Funds Pursuant 
to the American Recovery and Reinvestment Act of 2009 (OMB M-09-21 
June 22, 2009), available at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-21.pdf.
---------------------------------------------------------------------------

    Tribe means an Indian tribe that has the meaning given that term in 
Section 4(e) of the Indian Self-Determination and Education Assistance 
Act.\31\
---------------------------------------------------------------------------

    \31\ 25 U.S.C. 450b(e).
---------------------------------------------------------------------------

    Underserved area means a Last Mile or Middle Mile service area, 
where at least one of the following factors is met: (i) No more than 50 
percent of the households in the Last Mile or Middle Mile service area 
have access to facilities-based, terrestrial broadband service at 
greater than the minimum broadband transmission speed (set forth in the 
definition of broadband above); (ii) no fixed or mobile terrestrial 
broadband service provider advertises to residential end users 
broadband transmission speeds of at least three megabits per second 
(``Mbps'') downstream in the Last Mile or Middle Mile service area; or 
(iii) the rate of terrestrial broadband subscribership for the Last 
Mile or Middle Mile service area is 40 percent of households or less.

[[Page 3799]]

An underserved area may include individual Census block groups or 
tracts that on their own would not be considered underserved. The 
availability of or subscribership rates for satellite broadband service 
is not considered for the purpose of determining whether an area is 
underserved.
    Unserved area means a Last Mile or Middle Mile service area where 
at least 90 percent of the households lack access to facilities-based, 
terrestrial broadband service, either fixed or mobile, at the minimum 
broadband transmission speed (set forth in the definition of broadband 
above). An unserved area may include individual Census block groups or 
tracts that on their own would not be considered unserved. A household 
has access to broadband service if the household readily can subscribe 
to that service upon request. The availability of or subscribership 
rates for satellite broadband service is not considered for the purpose 
of determining whether an area is unserved.

IV. Award Information

A. General

    Approximately $2.6 billion in budget authority has been set aside 
for funding opportunities under this NOFA. Publication of this NOFA 
does not obligate NTIA to award any specific project or obligate all of 
the available funds. Based on Round 1 experience, NTIA expects this 
grant round to be very competitive. During Round 1, RUS and NTIA 
received approximately 2,200 applications collectively requesting 
nearly $28 billion in Federal funds.

B. Funding Limits

    Approximately $2.6 billion is available to be awarded under this 
NOFA, which NTIA anticipates will be allocated in the following 
categories:
    a. Approximately $2.35 billion will be made available for CCI 
projects;
    b. At least $150 million will be made available for PCC projects; 
and
    c. At least $100 million will be made available for SBA projects.

C. Repooling

    Subject to the statutory thresholds set forth in the Recovery Act, 
NTIA retains the discretion to divert funds from one category of 
projects to another.

D. Unused Funds

    Funds remaining from the initial round of funding due to BTOP 
funding priorities or any other reason, and unused funds not awarded 
under the Broadband Mapping Program, may be used to augment the BTOP 
funding categories established above.\32\ NTIA reserves the right to 
reopen the application window or release subsequent NOFAs to ensure 
that all funds are awarded by September 30, 2010.
---------------------------------------------------------------------------

    \32\ See supra note 6.
---------------------------------------------------------------------------

E. Award Amount

    Given NTIA's Round 1 experience, NTIA expects to make awards within 
the following funding ranges. These ranges are not required minimums 
and maximums, but applicants requesting amounts for projects outside of 
these ranges must provide a reasoned explanation for the variance in 
their project size.

CCI: $5 million-$150 million
PCC: $500,000-$15 million
SBA: $500,000-$15 million

F. Award Period

    All awards under BTOP must be made no later than September 30, 
2010.\33\ While the completion time will vary depending on the 
complexity of the project, grant recipients must substantially complete 
projects supported by this Program no later than two years, and 
projects must be fully completed no later than three years, following 
the date of issuance of the grant award.\34\
---------------------------------------------------------------------------

    \33\ Recovery Act sec. 6001(d)(2), 123 Stat. at 513.
    \34\ Id. Sec. 6001(d)(3), 123 Stat. at 513.
---------------------------------------------------------------------------

G. Type of Funding Instrument

    The funding instrument will be a grant.

V. Eligibility Information for BTOP

    Applicants must satisfy the eligibility requirements set forth 
below in Sections V.A. through V.C. to qualify for funding. Applicants 
failing to comply with these requirements will not be considered for an 
award.

A. Eligible Entities

1. Applicant Organization
    The following entities are eligible to apply for funding:
    a. States, local governments, or any agency, subdivision, 
instrumentality, or political subdivision thereof;
    b. The District of Columbia;
    c. A territory or possession of the United States;
    d. An Indian tribe (as defined in Section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b));
    e. A native Hawaiian organization;
    f. A non-profit foundation, a non-profit corporation, a non-profit 
institution, or a non-profit association;
    g. Other non-profit entities;
    h. For-profit corporations;
    i. Limited liability companies; and
    j. Cooperative or mutual organizations.
2. BTOP Public Interest Finding
    Section 6001(e)(1)(C) of the Recovery Act authorizes the Assistant 
Secretary to find by rule that it is in the public interest for any 
entity not otherwise encompassed by Section 6001(e)(1) to be eligible 
for a BTOP grant to the extent that such finding will promote the 
purposes of BTOP in a technology neutral manner. Consistent with the 
rationale set forth in the First NOFA,\35\ the Assistant Secretary 
found it to be in the public interest to permit for-profit corporations 
and non-profit entities (not otherwise encompassed by Section 
6001(e)(1)(B)) that are willing to promote the goals of the Recovery 
Act and comply with the statutory requirements of BTOP to be eligible 
for a grant. By adopting this broad approach, the Assistant Secretary 
intended to invite a diverse group of applicants to participate in BTOP 
and to expand broadband capabilities in a technology neutral 
manner.\36\ NTIA will continue to permit these same entities to apply 
for funding in this next round of awards.
---------------------------------------------------------------------------

    \35\ See 74 FR at 33134 (July 9, 2009).
    \36\ Recovery Act sec. 6001(e)(1)(C), 123 Stat. at 513; 74 FR at 
33110.
---------------------------------------------------------------------------

B. Fully Completed Application

    All applications will be evaluated initially to ensure that they 
are fully complete, certified, and contain all supporting 
documentation.

C. Cost Share/Matching

1. Matching Requirement
    In general, awardees under BTOP are required by statute to provide 
matching funds of at least 20 percent toward the total eligible costs 
of the project unless the Assistant Secretary grants a waiver. For 
costs to be eligible to meet matching requirements, they first must be 
allowable under the grant program. Eligible cost concepts are discussed 
in more detail in Section V.E. of this NOFA. Applicants must document 
in their application their capacity to provide matching funds. NTIA 
will provide up to 80 percent of the total eligible costs of the 
project, unless the applicant petitions the Assistant Secretary for a 
waiver of the matching requirement and that waiver is granted based on 
the applicant's demonstration of financial need, as discussed 
below.\37\
---------------------------------------------------------------------------

    \37\ See id. sec. 6001(f), 123 Stat. at 514.
---------------------------------------------------------------------------

    Generally, Federal funds may not be used as a cost match except as 
provided

[[Page 3800]]

by Federal statute.\38\ In-kind contributions, including third party 
in-kind contributions, are non-cash donations to a project that may 
count toward satisfying the non-Federal matching requirement of a 
project's total budgeted costs. In-kind contributions must be allowable 
project expenses. Such contributions may be accepted as part of an 
applicant's matching costs when such contributions meet certain 
criteria.\39\
---------------------------------------------------------------------------

    \38\ See Uniform Administrative Requirements for Grants and 
Agreements with Institutions of Higher Education, Hospitals, Other 
Nonprofit, and Commercial Organizations, 15 CFR 14.23(a)(5); see 
also Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments, 24 CFR 24.24(b)(1).
    \39\ See 15 CFR 14.23(a), 24.24(a).
---------------------------------------------------------------------------

    Applicants that propose to provide a cost match that is all cash 
will be given additional favorable consideration in the application 
review process. Additionally, applicants will be given favorable 
consideration in the selection process by proposing to contribute a 
non-Federal cost match that equals or exceeds 30 percent of the total 
eligible costs of the projects. CCI applicants are strongly encouraged 
to not request more Federal funding than they require to make the 
project financially feasible and sustainable.\40\
---------------------------------------------------------------------------

    \40\ See supra Section II.C.4.
---------------------------------------------------------------------------

2. Petition for Waiver
    In requesting a waiver of the matching requirement, an applicant 
should fully explain and document its inability to provide the required 
20 percent matching share of the eligible costs of the proposed 
project. In demonstrating financial need, the applicant should submit: 
(1) Documents that include the applicant's assets, liabilities, 
operating expenses, and revenues from any existing operations; (2) 
denial of funding from a public or private lending institution; or (3) 
any other documents that demonstrate financial need. Mere statements of 
financial need without supporting documentation will not be viewed 
favorably. The petition for waiver and documentation must be set forth 
clearly in the application. The Assistant Secretary will evaluate the 
information provided in support of the petition and may increase the 
Federal share if financial need is demonstrated.

D. General Program Requirements

1. Timely Completion
    Applicants must demonstrate that the project can be substantially 
completed within two years of the start date of the grant award and 
fully completed no later than three years following the date of 
issuance of the grant award. A BTOP project is considered 
``substantially complete'' when a grantee has met 67 percent of the 
project milestones and received 67 percent of its award funds. In 
evaluating compliance with this factor, NTIA will consider the planned 
start date of the project; the reasonableness of the project timeline 
and associated milestones; whether the applicant will be able to secure 
all licenses, franchises, and regulatory approvals required to complete 
the project; whether the applicant will be able to meet all 
environmental requirements; and whether the required contractors and 
vendors necessary to implement the project are prepared to enter into 
contracts as soon as the funds are made available.
    In view of the urgent need for additional economic stimulus, 
however, NTIA strongly encourages applicants to fully complete their 
projects within the two-year time period from the date of issuance of 
the award.
2. Demonstration That Project Could Not Be Implemented ``But For'' 
Federal Grant Assistance
    Grant applicants must provide documentation that the project would 
not have been implemented during the grant period without Federal grant 
assistance.\41\ This documentation may consist of, but is not limited 
to, such items as a denial of funding from a public or private lending 
institution, a current fiscal year budget that shows the lack of 
available revenue options for funding the project, or a business case 
that demonstrates that the project would not be economically feasible 
without grant financing.
---------------------------------------------------------------------------

    \41\ See supra note 23.
---------------------------------------------------------------------------

3. Additional Requirements Applicable to Comprehensive Community 
Infrastructure Applicants
a. Broadband Service
    All CCI applicants must propose to offer service meeting the 
definition of broadband as defined in Section III.
b. Nondiscrimination and Interconnection
    All CCI applicants must commit to the following Nondiscrimination 
and Interconnection Obligations: \42\ (i) Adhere to the principles 
contained in the FCC's Internet Policy Statement (FCC 05-151, adopted 
August 5, 2005) or any subsequent ruling or statement; (ii) not favor 
any lawful Internet applications and content over others; (iii) display 
any network management policies in a prominent location on the service 
provider's Web page and provide notice to customers of changes to these 
policies (awardees must describe any business practices or technical 
mechanisms they employ, other than standard best efforts Internet 
delivery, to allocate capacity; differentiate among applications, 
providers, or sources; limit usage; and manage illegal or harmful 
content); (iv) connect to the public Internet directly or indirectly, 
such that the project is not an entirely private closed network; and 
(v) offer interconnection, where technically feasible without exceeding 
current or reasonably anticipated capacity limitations, at reasonable 
rates and terms to be negotiated with requesting parties. This includes 
both the ability to connect to the public Internet and physical 
interconnection for the exchange of traffic. Applicants must disclose 
their proposed interconnection, nondiscrimination, and network 
management practices with the application.
---------------------------------------------------------------------------

    \42\ Nothing herein shall be construed to affect the 
jurisdiction of the FCC with respect to such matters.
---------------------------------------------------------------------------

    All these requirements shall be subject to the needs of law 
enforcement and reasonable network management. Thus, awardees may 
employ generally accepted technical measures to provide acceptable 
service levels to all customers, such as caching (including content 
delivery networks) and application-neutral bandwidth allocation, as 
well as measures to address spam, denial of service attacks, illegal 
content, and other harmful activities. In evaluating the reasonableness 
of network management techniques, NTIA will be guided by any applicable 
rules or findings established by the FCC, whether by rulemaking or 
adjudication.
    In addition to providing the required connection to the Internet, 
awardees may offer managed services, such as telemedicine, public 
safety communications, distance learning, and virtual private networks, 
that use private network connections for enhanced quality of service 
rather than traversing the public Internet.
    An awardee may satisfy the requirement for interconnection by 
negotiating in good faith with all parties making bona fide requests. 
The awardee and requesting party may negotiate terms such as business 
arrangements, capacity limits, financial terms, and technical 
conditions for interconnection. If the awardee and requesting party 
cannot reach agreement, they may voluntarily seek an interpretation by 
the FCC of any FCC rules implicated in the dispute. If an agreement 
cannot be reached within 90 days, the party requesting interconnection 
may notify NTIA in

[[Page 3801]]

writing of the failure to reach satisfactory terms with the awardee. 
The 90-day limit is to encourage the parties to resolve differences 
through negotiation.
    With respect to non-discrimination, those who believe an awardee 
has failed to meet the non-discrimination obligations should first seek 
action at the FCC of any FCC rules implicated in the dispute. If the 
FCC chooses to take no action, those seeking recourse may notify NTIA 
in writing about the alleged failure to adhere to commitments of the 
award.
    These conditions apply to the awardee and will remain in effect for 
the life of the awardee's Federally funded facilities and equipment 
used in the project. These conditions will not apply to any existing 
network arrangements or to non-awardees using the network. Note, 
however, that the awardee may negotiate contractual covenants with 
other broadband service providers engaged to deploy or operate the 
network facilities and pass these conditions through to such providers. 
Awardees that fail to accept or comply with the terms listed above may 
be considered in default of their grant agreements. NTIA may exercise 
all available remedies in the event of a default, including suspension 
of award payments or termination of the award.\43\
---------------------------------------------------------------------------

    \43\ Note that the changes made to this section from the First 
NOFA are meant to clarify, and not change, applicants' obligations.
---------------------------------------------------------------------------

c. Last Mile Coverage Obligation
i. Service Obligation
    An applicant for a CCI project that includes a Last Mile component 
must identify the Last Mile service area(s) selected for the project. 
There is a presumption that the applicant will provide service to the 
entire Last Mile service area(s).
ii. Petition for Waiver
    An applicant may petition for a waiver of the Last Mile Coverage 
Obligation if it provides a reasoned explanation as to why providing 
service or coverage for the entire Last Mile service area is extremely 
burdensome for the applicant. In considering whether providing service 
or coverage is extremely burdensome, the applicant must explain whether 
there are any legal, technical, or financial impediments to covering 
each Census block group or tract. Mere statements regarding the burden 
to serve an area without supporting documentation will not be viewed 
favorably. The petition for waiver and documentation must be set forth 
clearly in the application. Applicants may be permitted to serve less 
than an entire Census block group or tract under certain conditions. 
For example, an applicant might request to be relieved of this 
requirement if the Census block group or tract exceeds 100 square miles 
or more or is larger than the applicant's authorized operating 
territory (e.g., it splits a rural incumbent local exchange carrier's 
(ILEC's) study area or exceeds the boundaries of a wireless carrier's 
licensed territory). Where applicable, an applicant seeking a waiver 
also should include information regarding the characteristics of the 
Last Mile service area (e.g., data showing whether broadband services 
already are available in the proposed unserved territory by more than 
one service provider or information regarding terrain, acreage, 
population, etc.) and costs (e.g., pro forma financial projections or 
estimated applicant cost/burden to provide broadband service to the 
remainder of the area).
d. Announcement of Proposed Funded Service Areas
    In the interests of promoting transparency and strengthening the 
selection process, NTIA will post an announcement identifying each CCI 
application it has received, along with a list of the Census block 
groups or tracts that each infrastructure applicant has proposed to 
serve through its project, at http://www.broadbandusa.gov. The posting 
of this announcement will provide existing broadband service providers 
with a 15-day window voluntarily to submit to NTIA information about 
the broadband services they currently offer in their respective service 
territories by Census block group or tract. If an existing broadband 
service provider submits a response outside of the 15-day period, NTIA 
may not consider this information in its evaluation of an applicant's 
Last Mile or Middle Mile service area(s).
    NTIA will consider the comments of existing broadband service 
providers as a factor in its evaluation of the applicant's Last Mile or 
Middle Mile service area(s) \44\ provided that they include the 
following information, some of which will be made public: (1) The name 
of the company providing information on its broadband service 
offerings; (2) a summary describing the information the provider has 
presented to NTIA; (3) the number of households and businesses that 
have access to broadband service in the provider's service territory by 
Census block group or tract; (4) the type of broadband services the 
provider offers in its service territory by Census block group or tract 
and the technology used to provide those services, including, for 
wireless carriers, the spectrum that is used; (5) the prices at which 
the broadband services are offered; (6) the speed of the broadband 
services that are offered; (7) the number of subscribers that the 
provider currently has for each of the broadband services it offers in 
its service territory by Census block group or tract; and (8) 
optionally, a list of the provider's Points of Presence (POPs) in or 
near Census block groups or tracts listed by the announcement.
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    \44\ See infra Section VII.A.1.
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    The information submitted by an existing broadband service provider 
relating to items (3) through (8) enumerated above will be treated as 
proprietary and confidential to the extent permitted under applicable 
law. The information described in items (1) and (2) above, which 
includes the identity of the company submitting information and a 
summary of its response, will be made publicly available. NTIA will 
post at http://www.broadbandusa.gov a list of the Census block groups 
or tracts in which existing broadband service providers have indicated 
that they provide broadband service. NTIA may consider any information 
submitted by existing broadband service providers as relevant to its 
prioritization and review of CCI applications and as part of its 
evaluation of the merits of a highly qualified CCI application. NTIA 
will contact the applicant as necessary for additional information to 
evaluate the unserved or underserved status of its Last Mile or Middle 
Mile service area(s), if applicable, and may take other data, such as 
existing State broadband maps and FCC Form 477 data, into account 
during this examination.

E. Funding Restrictions--Eligible and Ineligible Costs

1. General
    Grant funds that NTIA awards may not necessarily be used to pay for 
all of the costs that the grant recipient incurs in carrying out the 
project. Specifically, grant funds must be used only to pay for 
eligible costs. Eligible costs are consistent with the cost principles 
identified in the applicable OMB circulars \45\ and in the grant 
program's

[[Page 3802]]

authorizing legislation. In addition, costs must be reasonable, 
allocable, necessary to the project, and conform to GAAP. For CCI 
projects, eligible costs are generally capital expenses, and not 
operating expenses. An applicant proposing to use any portion of the 
grant funds for any ineligible cost will be instructed to revise its 
proposed budget to remove such costs prior to the award of a grant.\46\ 
A more detailed discussion of the eligible and ineligible costs that 
are applicable to each BTOP project category is set forth in the 
following sections.
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    \45\ For example, there is a set of Federal principles for 
determining eligible or allowable costs. Allowability of costs will 
be determined in accordance with the cost principles applicable to 
the entity incurring the costs. Thus, allowability of costs incurred 
by State, local or Federally-recognized Indian tribal governments is 
determined in accordance with the provisions of OMB Circular A-87, 
``Cost Principles for State, Local and Indian Tribal Governments.'' 
The allowability of costs incurred by nonprofit organizations is 
determined in accordance with the provisions of OMB Circular A-122, 
``Cost Principles for Non-Profit Organizations.'' The allowability 
of costs incurred by institutions of higher education is determined 
in accordance with the provisions of OMB Circular A-21, ``Cost 
Principles for Educational Institutions.'' The allowability of costs 
incurred by hospitals is determined in accordance with the 
provisions of Appendix E of 45 CFR part 74, ``Principles for 
Determining Costs Applicable to Research and Development under 
Grants and Contracts with Hospitals.'' The allowability of costs 
incurred by commercial organizations and those nonprofit 
organizations listed in Attachment C to Circular A-122 is determined 
in accordance with the provisions of the Federal Acquisition 
Regulation (FAR) at 48 CFR part. 31. See 15 CFR 14.27 and 24.22 
(governing the Department of Commerce's implementation of OMB 
requirements).
    \46\ BTOP CCI applicants and PCC applicants will be directed to 
revise SF-424A (for non-construction projects) or SF-424C (for 
construction projects). SBA applicants will be directed to revise 
SF-424A (for non-construction projects).
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    In general, a project will incur both direct and indirect costs. 
Direct and indirect costs may be reimbursed from grant funds provided 
that they fall within the approved eligible cost categories discussed 
below.
a. Direct Costs of a BTOP Project
    Direct costs are those that are directly related and traceable to 
the cost of the project being supported. Direct costs of a project may 
be charged to the award if they are allowable costs and are included 
within approved budget categories.
b. Indirect Costs of a BTOP Project
    NTIA has the discretion to consider indirect costs as eligible 
expenses under BTOP. For CCI projects, reasonable indirect costs 
associated with the construction, deployment, or installation of 
facilities and equipment used to provide broadband service as described 
in Section V.E.2. will be considered eligible provided that they are 
included as a line item in the applicant's budget and the applicant has 
established, or commits to apply for, an approved indirect cost rate. 
For PCC and SBA projects, reasonable indirect costs associated with 
eligible project activities as detailed in Sections V.E.3. and V.E.4. 
will be considered eligible costs provided they are included as a line 
item in the applicant's budget and the applicant has established, or 
commits to apply for, an approved indirect cost rate. The process for 
establishing an indirect cost rate with the DOC is described in a 
document entitled ``General Indirect Cost Rate Program Guidelines for 
Grantee Organizations'' and can be found on the Department of Commerce 
Web site.\47\ Applicants that do not have an approved indirect cost 
rate will have 90 days from the award start date to apply to have a 
rate established.
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    \47\ See http://oam.ocs.doc.gov/docs/DOC%20IDC%20Ext%20Policy.v6.doc.
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2. Eligible and Ineligible Costs for BTOP Comprehensive Community 
Infrastructure Projects
a. Eligible Costs for Comprehensive Community Infrastructure Projects
    Grant funds may be used to pay for the following expenses:
    i. To fund the construction or improvement of all facilities 
required to provide broadband service; \48\
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    \48\ These facilities and equipment may include, for example, 
but are not limited to, the costs associated with complying with all 
applicable legal requirements, such as the Communications Assistance 
for Law Enforcement Act (CALEA). See infra Section X.P.
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    ii. To fund the cost of long-term leases (for terms greater than 
one year) of facilities required to provide broadband service, 
including indefeasible right-of-use (IRU) agreements;
    iii. To fund reasonable pre-application expenses in an amount not 
to exceed five percent of the award. Pre-application expenses, which 
include expenses related to preparing an application, may be reimbursed 
if they are incurred after the publication date of this NOFA and prior 
to the date of issuance of the grant award from NTIA, except that 
lobbying costs and contingency fees are not reimbursable from BTOP 
funds;
    iv. To fund reasonable indirect costs consistent with the 
principles outlined in Section V.E.1. of this NOFA; and
    v. Undertaking such other projects and activities as the Assistant 
Secretary finds to be consistent with the purposes for which the 
Program is established.
b. Ineligible Costs for Comprehensive Community Infrastructure Projects
    Grant funds may not be used for any of the following purposes:
    i. To fund operating expenses of the applicant;
    ii. To fund costs incurred prior to the date on which the 
application is submitted, with the exception of eligible pre-
application expenses;
    iii. To fund an acquisition of an affiliate, including the 
acquisition of the stock of an affiliate;
    iv. To fund the purchase or lease of any vehicle other than those 
used primarily in construction or system improvements;
    v. To fund the merger or consolidation of entities; or
    vi. To fund costs incurred in acquiring spectrum as part of an FCC 
auction or in a secondary market acquisition.
3. Eligible and Ineligible Costs for Public Computer Center Projects
a. Eligible Costs for Public Computer Center Projects
    Projects under this category are aimed at expanding broadband 
access and capacity at community anchor institutions, organizations 
serving vulnerable populations, or job-creating strategic facilities 
located in State- or Federally-designated economic development areas as 
well as stimulating broadband demand, economic growth, and job 
creation. Grantees may use BTOP funding to expand public computer 
center capacity by:
    i. Acquiring broadband-related equipment, instrumentation, 
networking capability, hardware and software, and digital network 
technology for broadband services, including the purchase of word 
processing software, computer peripherals, such as mice and printers, 
and computer maintenance services and virus-protection software;
    ii. Developing and providing training, education, support, and 
awareness programs or web-based resources, including reasonable 
compensation for qualified instructors, technicians, managers, and 
other employees essential for these types of programs;
    iii. Facilitating access to broadband services, including, but not 
limited to, making public computer centers accessible to the disabled;
    iv. Installing or upgrading broadband facilities on a one-time, 
capital improvement, basis in order to increase broadband capacity;
    v. Constructing, acquiring, or leasing a new facility, provided 
that the applicant explains why it is necessary to construct, acquire, 
or lease a new facility to facilitate public access to broadband 
services or expand computer center capacity;
    vi. Funding reasonable indirect costs consistent with the 
principles outlined in Section V.E.1. of this NOFA;
    vii. Undertaking such other projects and activities as the 
Assistant Secretary

[[Page 3803]]

finds to be consistent with the purposes for which the Program is 
established; and
    viii. Paying for reasonable pre-application expenses in an amount 
not to exceed five percent of the award. Pre-application expenses, 
which include expenses related to preparing an application, may be 
reimbursed if they are incurred after the publication date of this NOFA 
and prior to the date of issuance of the grant award from NTIA, except 
that lobbying costs and contingency fees are not reimbursable from BTOP 
funds.
    While some of the costs associated with the activities enumerated 
above may be properly classified as operating expenses, an applicant 
should describe in its application how it intends to cover the 
operating expenses of the project after the grant period expires.
b. Ineligible Costs for Public Computer Center Projects
    BTOP grant funds may not be used to fund purchases that are not 
used predominantly for expanding public access to broadband service or 
enhancing broadband capacity at public computer center locations.
4. Eligible and Ineligible Costs for Sustainable Broadband Adoption 
Projects
a. Eligible Costs for Sustainable Broadband Adoption Projects
    Projects under this category are aimed at providing broadband 
education, awareness, training, access, equipment, and support in order 
to stimulate sustainable adoption of broadband services by individuals, 
households, and community anchor institutions. In this context, 
sustainable means adoption (i.e., subscription to broadband service) 
that the consumer or institution can and will continue to pay for after 
the award period. Grantees may use BTOP funding for innovative programs 
that encourage sustainable adoption of broadband services by:
    i. Acquiring broadband-related equipment, instrumentation, 
networking capability, hardware and software, and digital network 
technology for broadband services;
    ii. Developing and providing training, education, support, and 
awareness programs, as well as web-based content that is incidental to 
the program's purposes, and includes reasonable compensation for 
qualified instructors for these types of programs;
    iii. Conducting broadband-related public education, outreach, 
support, and awareness campaigns;
    iv. Implementing programs to facilitate greater access to broadband 
service, devices, and equipment;
    v. Funding reasonable indirect costs consistent with the principles 
outlined in Section V.E.1. of this NOFA;
    vi. Undertaking such other projects and activities as the Assistant 
Secretary finds to be consistent with the purposes for which the 
Program is established; and
    vii. Paying for reasonable pre-application expenses in an amount 
not to exceed five percent of the award. Pre-application expenses, 
which include expenses related to preparing an application, may be 
reimbursed if they are incurred after the publication date of this NOFA 
and prior to the date of issuance of the grant award from NTIA, except 
that lobbying costs and contingency fees are not reimbursable from BTOP 
funds.
    While some of the costs associated with the activities enumerated 
above may be properly classified as operating expenses, an applicant 
should describe in its application how it intends to cover the 
operating expenses of the project after the grant period expires, if 
appropriate.
b. Ineligible Costs for Sustainable Broadband Adoption Projects
    BTOP grant funds may not be used for expenses or purchases that are 
not used predominantly for the provision of broadband education, 
awareness, training, access, equipment, and support. Additionally, 
costs associated with constructing or leasing broadband facilities and 
infrastructure are not eligible.

F. Use of Program Income

    Grantees are required to account for any Program income directly 
generated by projects financed in whole or in part with Federal funds. 
Given the Recovery Act's objectives to spur job creation and stimulate 
long-term economic growth and opportunity, projects funded by BTOP 
grants are expected to demonstrate convincingly the ability to be 
sustained beyond the funding period. While grant funds are intended to 
cover the capital costs of a project as part of the Recovery Act's 
effort to stimulate the economy, grant recipients for all grant 
programs are expected to present projects that will sustain long-term 
growth and viability.
    Any Program income generated by a project funded by BTOP during the 
grant period shall be retained by the grant recipient and shall be used 
in one or more of the following ways: (1) Added to the funds committed 
to the project by NTIA and the recipient to conduct additional 
activities that will further eligible project objectives, including (a) 
reinvestment in project facilities, (b) funding BTOP compliance costs, 
and (c) paying operating expenses of the project; or (2) used to 
finance the non-Federal share of the project.\49\ Program income means 
gross income earned by the recipient that is either directly generated 
by a supported activity or earned as a result of the award during the 
funding period.\50\ Grant recipients shall have no obligation to the 
Federal government regarding Program income earned after the end of the 
project period.\51\ However, the Federal government retains an interest 
in property in the event that it is sold, consistent with the guidance 
outlined in Section IX.C. of this NOFA and in applicable DOC 
regulations.\52\
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    \49\ 15 CFR 14.24(b), 24.25(g).
    \50\ 15 CFR 14.2(aa), 24.25(b). Program income includes, among 
other things, income from fees for services performed, from the use 
or rental of real or personal property acquired with grant funds, 
and from the sale of commodities or items fabricated under a grant 
agreement. 15 CFR 14.2(aa), 24.25(a). In general, costs incident to 
the generation of program income may be deducted from gross income 
to determine program income, provided these costs have not been 
charged to the award. 15 CFR 14.25(f), 24.25(c).
    \51\ 15 CFR 14.25(h), 24.25(h).
    \52\ See, e.g., 2 CFR 215.24; 15 CFR 14.24, 24.25.
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VI. Application and Submission Information

A. Request for Application Package

    Complete application packages, including required Federal forms and 
instructions, will be available at http://www.broadbandusa.gov. 
Additional information for BTOP can be found in the Application 
Guidelines at http://www.broadbandusa.gov. This Web site will be 
updated regularly.

B. Registration

1. Central Contractor Registration (CCR)
    All applicants are required to have a current registration in the 
CCR database prior to receiving an award. Online CCR registration is 
available at http://www.ccr.gov/StartRegistration.aspx. Applicants 
without a current CCR are encouraged to register as soon as possible 
after the release of this NOFA.\53\
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    \53\ ``To enable timeliness of awards, agencies should engage in 
aggressive outreach to potential applicants to begin application 
planning activities, including the process of Central Contractor 
Registration (CCR) and obtaining a Dun and Bradstreet Universal 
Numbering System (DUNS) number.'' Updating Implementing Guidance for 
the American Recovery and Reinvestment Act of 2009 (OMB M-09-15 
April 3, 2009), available at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-15.pdf.

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[[Page 3804]]

2. DUNS Number
    All applicants should obtain a Dun and Bradstreet Data Universal 
Numbering System (DUNS) number as soon as possible after the release of 
this NOFA.\54\ Applicants can receive a DUNS number at no cost by 
calling the dedicated toll-free DUNS number request line at 1-866-705-
5711 or via the Internet at http://www.dunandbradstreet.com.
---------------------------------------------------------------------------

    \54\ Id.
---------------------------------------------------------------------------

C. Choosing the Proper Agency and Category for an Application

1. Broadband Infrastructure
a. Choosing BIP or BTOP
    Applicants that are eligible for both BIP and BTOP have the option 
to apply to either agency for funding for a project. However, 
applicants should apply to only one agency for a given project. NTIA 
strongly recommends that applicants that are current RUS loan or grant 
recipients, as well as any applicant whose project is for a Last Mile 
area that is at least 75 percent rural, should apply to BIP for 
funding. This recommendation is necessary to improve the efficiency of 
both BIP and BTOP and to leverage the core expertise of the agencies. 
The agencies will coordinate to identify potential service area 
overlaps, and will resolve such conflicts in the manner that best 
satisfies the statutory objectives of both programs.
b. Transferability
    Under this NOFA, the Assistant Secretary may refer to RUS any CCI 
application that NTIA has determined not to fund but that may be 
consistent with BIP requirements.
c. Comprehensive Community Infrastructure
    Applications for CCI projects should provide a broadband 
infrastructure solution that addresses the major needs of communities 
the project intends to serve. Priority will be given to projects that 
include a Middle Mile component. The project should meet the 
significant needs of the community, which in the first instance should 
include providing broadband service to community anchor institutions, 
such as community colleges, schools, libraries, medical and healthcare 
providers, community support organizations, and public safety entities. 
CCI projects should be technically feasible, sustainable, and scalable, 
and address BTOP's priority needs, including offering substantial 
economic, educational, healthcare, and public safety benefits relative 
to the costs of providing service. NTIA will give strong preference to 
CCI applications that satisfy each of the priorities set forth in 
Section II.B.
    To the extent that a CCI project contains a Last Mile component in 
rural areas, the additional costs of offering service to residential 
consumers and non-community anchor institutions may not exceed more 
than 20 percent of the total eligible costs of the project. 
Additionally, the applicant must demonstrate the cost reasonableness 
and effectiveness of the Last Mile component of its project. 
Specifically, applicants must ensure that this aspect of the proposal 
yields total eligible project costs that are less than $10,000 per 
household or per subscriber, unless the applicant can demonstrate why 
it should be permitted to exceed this ceiling. NTIA will look more 
favorably upon applications with lower costs per household or per 
subscriber.
2. Public Computer Centers
    Applications for PCC projects must expand public computer center 
capacity, including at community colleges and public libraries.\55\ 
They must provide broadband access or improve broadband access to the 
general public or a specific vulnerable population, such as low-income, 
unemployed, aged, children, minorities, and people with disabilities. 
Projects must create or expand a public computer center meeting a 
specific public need for broadband service, including, but not limited 
to, education, employment, economic development, and enhanced service 
for healthcare delivery, children, and vulnerable populations. As 
described below, NTIA will consider information related to the 
demographics, size, and scope of the populations to be served, as well 
as the capacity of and the training provided by the proposed centers.
---------------------------------------------------------------------------

    \55\ Recovery Act Tit. I, 123 Stat. at 128.
---------------------------------------------------------------------------

3. Sustainable Broadband Adoption
    Applications for SBA projects should demonstrate a sustainable 
increase in demand for and subscribership to broadband services. 
Projects should meet a specific public need for broadband service, 
including, but not limited to, education, employment, economic 
development, and enhanced service for healthcare delivery, children, 
and vulnerable populations. Projects should describe the barriers to 
adoption in a given area, especially among vulnerable populations, and 
propose an innovative and persuasive solution to achieve increased 
adoption. Applicants might show how variations on one or more proven 
demand stimulation strategies--such as awareness-building, development 
of relevant content, and demand aggregation--would promote sustainable 
adoption. NTIA expects a high degree of verification that will 
demonstrate the effectiveness of various approaches to building 
sustainable broadband adoption, including market research and surveys.

D. Contents of the Application

1. Comprehensive Community Infrastructure Applications
    A complete CCI application will include the elements listed below. 
As required by the Recovery Act, NTIA is required to make certain 
information about applications available in a publicly accessible 
database.\56\ Thus, NTIA will publicly display application elements 
containing such information on the applicant database at http://www.broadbandusa.gov. See Section X.J. for a discussion of NTIA's 
treatment of confidential materials.
---------------------------------------------------------------------------

    \56\ Specifically, NTIA is required to create an application 
database that includes at least a list of each entity that has 
applied for a BTOP grant, a description of each application, and the 
status of each application. Recovery Act sec. 6001(i)(5), 123 Stat. 
at 515. After award, NTIA is required to make certain additional 
information available about the grants (e.g., the name of each 
entity receiving funds, the purpose for which the entity is 
receiving funds, and the quarterly reports). Id.
---------------------------------------------------------------------------

    The following application elements will be publicly displayed on 
the applicant database:
    a. The identity of the applicant and general applicant and project 
information;
    b. An executive summary of the project;
    c. Information regarding the proposed funded service area; and
    d. The Federal grant request and cost match.
    The following elements will not be included in the publicly 
accessible applicant database:
    a. A description of the applicant's nondiscrimination, 
interconnection, and network management plans;
    b. Details on local community involvement and partnerships with 
government, community, and community anchor institutions, and 
involvement of socially and economically disadvantaged small business 
concerns (SDB) as defined in Section III of this NOFA;
    c. A description of how the applicant will advance the objectives 
of the Recovery Act, as well as the specific objectives of BTOP;
    d. A description of the proposed service offerings, including the 
pricing of the services and information on available services in the 
area;

[[Page 3805]]

    e. Technical details of the proposed project;
    f. A timeline for the implementation of the project, including key 
milestones for implementation of the project, preparations, and risk 
factors;
    g. Information regarding the organization's capacity and readiness;
    h. Details on the project budget and funding, including the level 
of need for Federal funding, details on other Federal funding received 
by the applicant, and information regarding matching funds;
    i. Pro forma financial analysis related to the sustainability of 
the project across an eight-year forecast period;
    j. Completion of the Environmental Questionnaire; and
    k. The following supplemental attachments as applicable:
    i. Historical financial statements and Certified Public Accountant 
(CPA) audits if applicable;
    ii. Proposed service offerings;
    iii. Competitor data;
    iv. Network diagram and system design;
    v. Maps of the proposed service areas;
    vi. Build out timeline;
    vii. Management team resumes and organization chart;
    viii. List of community anchor institutions;
    ix. Governance and key partnerships;
    x. Pro forma financial projections and subscriber estimates; and
    xi. Authorized Organization Representation and Compliance and 
Assurance Certification.
2. Public Computer Centers Applications
    A complete PCC application will include the elements listed below. 
As noted above, NTIA is required by the Recovery Act to make certain 
information about applications available in a publicly accessible 
database. Thus, NTIA will publicly display application elements 
containing such information on the applicant database at http://www.broadbandusa.gov. See Section X.J. for a discussion of NTIA's 
treatment of confidential materials.
    The following application elements will be publicly displayed on 
the applicant database:
    a. The identity of the applicant and general applicant and project 
information;
    b. An executive summary of the project; and
    c. The Federal grant request and cost match.
    The following elements will not be included in the publicly 
accessible applicant database:
    a. A description of how the applicant will advance the objectives 
of the Recovery Act, as well as the specific objectives of BTOP;
    b. A summary of the viability of the project;
    c. Proposed budget and sustainability information;
    d. Completion of an environmental checklist or the Environmental 
Questionnaire; and
    e. The following supplemental attachments:
    i. Governance and key partnerships;
    ii. Historical financial statements, as applicable;
    iii. Public center detail;
    iv. Management team resumes and organization chart;
    v. SF-424 budget;
    vi. Detailed budget; and
    vii. Authorized Organization Representative and Compliance and 
Assurance Certification.
3. Sustainable Broadband Adoption Applications
    A complete SBA application will include the elements listed below. 
As noted above, NTIA is required by the Recovery Act to make certain 
information about applications available in a publicly accessible 
database. Thus, NTIA will publicly display application elements 
containing such information on the applicant database at http://www.broadbandusa.gov. See Section X.J. for a discussion of NTIA's 
treatment of confidential materials.
    The following elements will be publicly displayed on the applicant 
database:
    a. The identity of the applicant and general applicant and project 
information;
    b. An executive summary of the project; and
    c. The Federal grant request and cost match.
    The following elements will not be included in the publicly 
accessible applicant database:
    a. A description of how the applicant will advance the objectives 
of the Recovery Act, as well as the specific objectives of BTOP;
    b. A summary of the viability of the project;
    c. Proposed budget and sustainability information;
    d. Completion of an environmental checklist and applicable 
certifications; and
    e. The following supplemental attachments:
    i. Governance and key partnerships;
    ii. Historical financial statements, as applicable;
    iii. Management team resumes and organization chart;
    iv. SF-424 budget;
    v. Detailed budget; and
    vi. Authorized Organization Representative and Compliance and 
Assurance Certification.
4. Supplementary Information Requests for Due Diligence
    As discussed in Section II.C. above, those applications that are 
considered to be most highly qualified (i.e., receiving the highest 
scores) will advance to due diligence and will be processed with 
priority given to projects that best conform with the statutory 
purposes and program priorities described in Section II. In due 
diligence, applicants may be asked to submit additional information, as 
appropriate, to clarify or to further substantiate the representations 
made in their application and allow Federal staff to evaluate fully the 
proposed project with respect to the eligibility factors, general 
Program requirements, evaluation criteria, and selection factors 
specified in this NOFA. Due diligence applies to all three categories 
of projects.

E. Filing Instructions

    Electronic submissions of applications will allow for the 
expeditious review of an applicant's proposal consistent with the goals 
of the Recovery Act. As a result, all applicants are required to submit 
their applications electronically at https://applyonline.broadbandusa.gov. The electronic application system will 
provide a date-and-time-stamped confirmation number that will serve as 
proof of submission. Please note that applications will not be accepted 
via paper, facsimile machine transmission, electronic mail, or other 
media format. Applicants, however, may request a waiver of these filing 
instructions pursuant to Section X.N. of this NOFA.

F. Submission Dates and Times

    All applications for funding BTOP projects must be submitted 
between February 16, 2010, at 8 a.m. Eastern Standard Time (EST) and 
March 15, 2010, at 5 p.m. Eastern Daylight Time (EDT).

G. Authorization

    As required by Section IX.C.5.a. of this NOFA, all applicants will 
be required to submit a certification by an Authorized Organization 
Representative at the time the application is submitted for filing.

H. Material Representations

    The application, including all certifications and assurances, and 
all forms submitted as part of the application will be treated as a 
material

[[Page 3806]]

representation of fact upon which NTIA will rely in awarding grants.

I. Material Revisions

    An applicant shall not be permitted to make any material revision 
to its application after the submission deadline. NTIA may request or 
accept clarifications, revisions or submissions for completeness that 
are non-material.

VII. Application Review Information

A. Evaluation Criteria

    The evaluation criteria used by expert reviewers to review and 
analyze BTOP applications are grouped into four categories: (1) Project 
Purpose; (2) Project Benefits; (3) Project Viability; and (4) Project 
Budget and Sustainability. Each application will be evaluated against 
the following objective criteria, and not against other applications.
1. Comprehensive Community Infrastructure
a. Project Purpose (20 Points)
    i. Fit with Statutory Purposes. Applications will be evaluated with 
respect to each of BTOP's statutory purposes.\57\ Reviewers will 
consider, relative to each purpose, whether the applicant is addressing 
a compelling problem of the sort that the statute is intended to 
resolve, whether the applicant has offered an effective solution to 
that problem, and whether the proposed solution is of broad 
significance and includes developments that can be replicated to 
improve future projects. Additional consideration also will be given to 
applicants that address more than one statutory purpose and project 
category (e.g., CCI, PCC, or SBA) in a convincing manner. Reviewers 
also will consider the ability of the project to enhance broadband 
service for healthcare delivery, education, and children as 
contemplated by the Recovery Act.\58\
---------------------------------------------------------------------------

    \57\ See Recovery Act sec. 6001(b), 123 Stat. at 512-13 (stating 
the purposes of the program are to provide broadband access to 
unserved areas; to provide improved broadband access to underserved 
areas; to provide broadband access, education, and support to 
community anchor institutions, or organizations and agencies serving 
vulnerable populations, or job-creating strategic facilities located 
in State- or Federally-designated economic development areas; to 
improve access to, and use of, broadband service by public safety 
agencies; and to stimulate the demand for broadband, economic 
growth, and job creation).
    \58\ See id. sec. 6001(h)(2)(C), 123 Stat. at 515.
---------------------------------------------------------------------------

    ii. Fit with BTOP Priorities. Applications will be evaluated with 
respect to each of the BTOP Priorities and factors set forth in Section 
II.B. Reviewers will consider the priorities assigned for CCI projects, 
and additional consideration will be given for projects that satisfy 
more priorities. Additional consideration will be given to applicants 
satisfying the factors used to assess whether the application meets 
Program objectives.
    iii. Potential for Job Creation. The application will be scored on 
the project's potential to create jobs, particularly jobs created 
directly by the project. Reviewers will assess the methodology used to 
calculate job estimates, the number and quality of the jobs created, 
and how the project balances job creation with cost efficiency.
    iv. Recovery Act and Other Governmental Collaboration. Applicants 
will be evaluated on their collaboration with Recovery Act or other 
State or Federal development programs that leverage the impact of the 
proposed project. Examples include the Department of Energy's Smart 
Grid Investment Program, the Department of Health and Human Services' 
Beacon Community Cooperative Agreement Program, the Department of 
Housing and Urban Development's Public Housing Capital Fund, the 
Department of Transportation's Capital Assistance for High Speed Rail 
Corridors and Intercity Passenger Service program, and other 
investments where collaboration would lead to greater project 
efficiencies. In each case, the applicant must convincingly demonstrate 
that these leveraging efforts are substantive and meaningful.
    v. Indian Tribes and Socially and Economically Disadvantaged Small 
Businesses. Reviewers will grant consideration to applicants that are 
Indian tribes or that certify that they meet the statutory definition 
of a socially and economically disadvantaged small business concern (as 
modified by the Small Business Administration's approval of NTIA's 
request to adopt an alternative small business concern size standard 
for use in BTOP), or that have established agreements to partner or 
contract with Indian tribes or socially and economically disadvantaged 
businesses.\59\
---------------------------------------------------------------------------

    \59\ 15 U.S.C. 637(a)(4) (as modified by the Small Business 
Administration's approval of NTIA's request to adopt an alternative 
small business concern size standard for use in BTOP).
---------------------------------------------------------------------------

b. Project Benefits (20 Points)
    i. Level of Need in the Proposed Funded Service Area. Applications 
will be scored on the level of need for the proposed network in the 
proposed funded service area. Reviewers will consider whether there are 
service providers already present in all or part of the area, as well 
as the pricing, coverage, and available capacity of those providers. 
Reviewers also will consider what proportion of the projected end users 
are located in unserved or underserved areas and may take into account 
any comments submitted by existing broadband service providers in 
response to the announcement described in Section V.D.3.d. of this NOFA 
in making this evaluation. Reviewers may consider other details that 
are pertinent to determining the degree of need for the project in the 
area(s) (e.g., unemployment rates or median income levels). In 
addition, reviewers also will consider applicants' explanation of why 
their proposed project is well-suited to address the needs of the 
proposed funded service area(s).
    ii. Impact on the Proposed Funded Service Area(s). Applications 
will be scored on how great an impact they would have on the proposed 
funded service area(s). Reviewers will consider the extent to which the 
proposed project will comprehensively meet, whether directly or 
indirectly, the key broadband needs of the communities within the 
proposed funded service area, particularly the need for Middle Mile 
capacity. This should include consideration of services for the 
community anchor institutions in the area(s), and access, transport, 
and wholesale services for other broadband service providers. Reviewers 
should give particular weight to services provided to community anchor 
institutions, especially those in unserved and underserved areas, as 
well as any community colleges within the proposed funded service area, 
whether or not they are located in unserved and underserved areas. 
Reviewers may take into account any comments submitted by existing 
broadband service providers in response to the announcement described 
in Section V.D.3.d. of this NOFA in making the evaluation of a proposed 
funded service area as unserved or underserved, as applicable. 
Reviewers also should consider the extent to which the project will 
provide, directly or indirectly, residential and business broadband 
services within the proposed funded service area(s).
    iii. Network Capacity and Performance. Applicants will be evaluated 
on the ability of the proposed network to provide sufficient capacity, 
as well as scalability, to meet the comprehensive needs of the 
communities in the proposed funded service area(s). The Middle Mile 
components of the network should provide capacity sufficient to serve 
the

[[Page 3807]]

anticipated Last Mile networks, community anchor institutions, and 
public safety entities, and the number of end users served by them, as 
projected by the applicant, taking into consideration the nature of the 
services for which these institutions and end users are likely to seek 
to utilize the network. Applications that include Last Mile components 
also will be evaluated on the extent to which the advertised speed for 
the network's highest offered speed tier exceeds the minimum speed 
requirement for broadband service (768 kbps downstream and 200 kbps 
upstream). Networks with higher end-user speeds will receive greater 
consideration. Proposed networks with high latency will be viewed 
unfavorably. Applicants may gain additional consideration if the 
applicant can demonstrate a clear and affordable upgrade path for the 
network.
    iv. Affordability of Services Offered. Projects will be evaluated 
on the pricing of the services offered compared to existing broadband 
services in the proposed funded service area(s) or based on nationwide 
averages. Applicants should demonstrate that this pricing is 
competitive and affordable to their target markets. However, pricing 
levels also should be reasonable and market-based, so as to maximize 
the efficient use of Federal grant funds.
    v. Nondiscrimination, Interconnection, and Choice of Provider. 
Applications will be scored on the extent to which the applicant 
commits to exceeding the minimum requirements for interconnection and 
nondiscrimination established in Section V.D.3. of this NOFA. 
Additional consideration will be given for displaying the network's 
nondiscrimination and interconnection policies in a prominent location 
on the service provider's Web page, and providing notice to customers 
of changes to these policies. Additional consideration will be given to 
applicants that commit to offering wholesale access to network elements 
and project facilities at reasonable rates and terms. Additional 
consideration also will be given to applicants that commit to binding 
private arbitration of disputes concerning the awardees' 
interconnection obligations as explained in Section V.D.3. of this 
NOFA. Reviewers also will consider whether the application proposes to 
construct infrastructure and implement a business plan that would allow 
more than one provider to serve end users in the proposed funded 
service area(s). Reviewers also may consider other factors to assess 
the degree of openness of the network.
c. Project Viability (30 Points)
    i. Technical Feasibility of the Proposed Project. Applications will 
be scored on the comprehensiveness and appropriateness of the technical 
solution and the clarity, level of detail, coherence, and cost-
effectiveness of the system designs.
    ii. Applicant's Organizational Capability. Reviewers will assess 
whether the applicant has the organizational capability necessary to 
undertake and complete the project. Reviewers will consider the years 
of experience and expertise of the project management team and the past 
track record of the organization with projects of a similar size and 
scope, as well as the organization's capacity and readiness.
    iii. Level of Community Involvement in the Project. Reviewers will 
evaluate linkages to unaffiliated organizations in the project area 
(from the public, non-profit, and private sectors), particularly 
community anchor institutions and public safety organizations, as an 
ongoing and integral part of the project planning and operation. 
Applicants should demonstrate that each linkage is substantial and 
meaningful.
d. Project Budget and Sustainability (30 Points)
    i. Reasonableness of the Budget. Reviewers will evaluate the 
reasonableness of the budget based on its clarity, level of detail, 
comprehensiveness, appropriateness to the proposed technical and 
programmatic solutions, the reasonableness of its costs, and whether 
the allocation of funds is sufficient to complete the tasks outlined in 
the project plan. To the extent that a CCI project includes a Last Mile 
component, the cost per household or cost per subscriber should not 
exceed $10,000. Additional consideration will be given to applicants 
that present cost per household or cost per subscriber proposals below 
the $10,000 maximum based on a sliding scale.
    ii. Sustainability of the Project. Applicants must convincingly 
demonstrate the ability of the project to be sustained beyond the 
funding period. Reviewers will consider business plans, market 
projections, third-party funding commitments, and other data as may be 
appropriate to the nature of the applicant and the proposed project.
    iii. Leverage of Outside Resources. Reviewers will consider whether 
the applicant has demonstrated the ability to provide, from non-Federal 
sources, funds required to meet or exceed the 20 percent matching funds 
requirement unless a waiver of that requirement has been requested. 
Additional consideration will be given to applicants that provide a 
cost match of 30 percent or greater of the total eligible costs of a 
project. Reviewers also will evaluate whether the applicant has 
tailored the proportion of Federal funding to the level that is 
necessary to make the project economically feasible and sustainable. 
Reviewers will give additional consideration to proposals that provide 
cash matches. For purposes of this evaluation, applicants that have 
received a full or partial waiver of the cost-matching requirement will 
be treated as having provided a 20 percent non-cash match.
2. BTOP Public Computer Center Projects
a. Project Purpose (20 Points)
    i. Fit with Statutory Purposes. Applications will be evaluated with 
respect to each of BTOP's statutory purposes.\60\ Reviewers will 
consider, relative to each purpose, whether the applicant is addressing 
a compelling problem of the sort that the statute is intended to 
resolve, whether the applicant has offered an effective solution to 
that problem, and whether the proposed solution is of broad 
significance and includes developments that can be replicated to 
improve future projects. Additional consideration also will be given to 
applicants that address more than one statutory purpose and project 
category (e.g., CCI, PCC, or SBA) in a convincing manner. Reviewers 
also will consider the ability of the project to enhance broadband 
service for healthcare delivery, education, and children as 
contemplated by the Recovery Act.\61\
---------------------------------------------------------------------------

    \60\ See Recovery Act sec. 6001(b), 123 Stat. at 512-13 (stating 
the purposes of the program are to provide broadband access to 
unserved areas; to provide improved broadband access to underserved 
areas; to provide broadband access, education, and support to 
community anchor institutions, or organizations and agencies serving 
vulnerable populations, or job-creating strategic facilities located 
in State- or Federally-designated economic development areas; to 
improve access to, and use of, broadband service by public safety 
agencies; and to stimulate the demand for broadband, economic 
growth, and job creation).
    \61\ See id. sec. 6001(h)(2)(C), 123 Stat. at 515.
---------------------------------------------------------------------------

    ii. Potential for Job Creation. The application will be scored on 
the project's potential to create jobs, particularly for jobs created 
directly by the project. Reviewers will assess the methodology used to 
calculate job estimates, the number and quality of the jobs created, 
and how the project balances job creation with cost efficiency.

[[Page 3808]]

    iii. Recovery Act and Other Governmental Collaboration. Applicants 
will be evaluated on their collaboration with Recovery Act or other 
State or Federal development programs that leverage the impact of the 
proposed project. Examples include the Department of Energy's Smart 
Grid Investment Program, the Department of Housing and Urban 
Development's Public Housing Capital Fund, and other investments where 
collaboration would lead to greater project efficiencies. In each case, 
the applicant must convincingly demonstrate that these leveraging 
efforts are substantive and meaningful.
    iv. Indian Tribes and Socially and Economically Disadvantaged Small 
Businesses. Reviewers will grant consideration to applicants that are 
Indian tribes or certify that they meet the statutory definition of a 
socially and economically disadvantaged small business concern (as 
modified by the Small Business Administration's approval of NTIA's 
request to adopt an alternative small business concern size standard 
for use in BTOP), or that have established agreements in principle to 
partner or contract with Indian tribes or such socially and 
economically disadvantaged businesses.
b. Project Benefits (20 Points)
    i. Availability to the Public. Applications will be scored on the 
availability of the computer center to the public. Reviewers will 
consider the capacity of the computer center, its hours of 
availability, any membership or usage fees charged, restrictions on 
usage, the proportionality of the computer center's capacity and hours 
of availability to the population the applicant proposes to serve, 
public outreach, and the computer center's accessibility to persons 
with disabilities, accounting for both the physical accessibility of 
the facility and the accessibility of the computer equipment and 
software.
    ii. Training and Educational Programs Offered. Applicants will be 
scored on the availability, accessibility, and quality of training and 
educational programs offered through the computer center. Reviewers 
will consider the degree to which the programs meet the documented 
needs of the community.
    iii. Availability and Qualifications of Consulting and Teaching 
Staff. Applications will be evaluated on the strength of the consulting 
and teaching staff at the computer center. Reviewers will consider the 
qualifications and training required of such staff as well as whether 
the number of available staff is sufficient for the capacity of the 
computer center.
    iv. Projects in Community Colleges. Reviewers will grant 
consideration to applicants that will create computer centers in 
community colleges, especially where the applicant can demonstrate that 
such computer centers will deliver substantive benefits to the 
college's core mission.
c. Project Viability (30 Points)
    i. Technical Feasibility of the Proposed Project. Applications will 
be scored on the comprehensiveness and appropriateness of the technical 
solution and the clarity, level of detail, and coherence of the system 
designs.
    ii. Applicant's Organizational Capability. Reviewers will assess 
whether the applicant has the organizational capability necessary to 
undertake and complete the project. Reviewers will consider the years 
of experience and expertise of the project management team, and the 
past track record of the organization with projects of a similar size 
and scope, as well as the organization's capacity and readiness.
    iii. Level of Community Involvement in the Project. Reviewers will 
evaluate linkages to unaffiliated organizations in the project area 
(from the public, nonprofit, and private sectors), particularly 
community anchor institutions and public safety organizations, as an 
ongoing and integral part of the project planning and operation. 
Applicants should demonstrate that each linkage is substantial and 
meaningful.
d. Project Budget and Sustainability (30 Points)
    i. Reasonableness of the Budget. Reviewers will evaluate the 
reasonableness of the budget based on its clarity, level of detail, 
comprehensiveness, appropriateness to the proposed technical and 
programmatic solutions, the reasonableness of its costs, and whether 
the allocation of funds is sufficient to complete the tasks outlined in 
the project plan.
    ii. Sustainability of the Project. Applicants must convincingly 
demonstrate the ability of the project to be sustained beyond the 
funding period. Reviewers will consider past performance of the 
applicant, community and institutional support for the project, third-
party funding commitments, and other data as may be appropriate to the 
nature of the applicant and the proposed project.
    iii. Leverage of Outside Resources. Reviewers will consider whether 
the applicant has demonstrated the ability to provide, from non-Federal 
sources, funds required to meet or exceed the 20 percent matching funds 
requirement unless a waiver of that requirement has been requested. 
Reviewers also will give additional consideration to proposals that 
provide cash matches. For purposes of this evaluation, applicants that 
have received a full or partial waiver of the cost-matching requirement 
will be treated as having provided a 20 percent non-cash match.
3. BTOP Sustainable Broadband Adoption Projects
a. Project Purpose (20 Points)
    i. Fit with Statutory Purposes. Applications will be evaluated with 
respect to each of BTOP's statutory purposes.\62\ Reviewers will 
consider, relative to each purpose, whether the applicant is addressing 
a compelling problem of the sort that the statute is intended to 
resolve, whether the applicant has offered an effective solution to 
that problem, and whether the proposed solution is of broad 
significance and includes developments that can be replicated to 
improve future projects. Additional consideration also will be given to 
applicants that address more than one statutory purpose and project 
category (e.g., CCI, PCC, or SBA) in a convincing manner. Reviewers 
will also consider the ability of the project to enhance broadband 
service for healthcare delivery, education, and children as 
contemplated by the Recovery Act.\63\
---------------------------------------------------------------------------

    \62\ See Recovery Act sec. 6001(b), 123 Stat. at 512-13 (stating 
the purposes of the program are to provide broadband access to 
unserved areas; to provide improved broadband access to underserved 
areas; to provide broadband access, education, and support to 
community anchor institutions, or organizations and agencies serving 
vulnerable populations, or job-creating strategic facilities located 
in State- or Federally-designated economic development areas; to 
improve access to, and use of, broadband service by public safety 
agencies; and to stimulate the demand for broadband, economic 
growth, and job creation).
    \63\ See id. sec. 6001(h)(2)(C), 123 Stat. at 515.
---------------------------------------------------------------------------

    ii. Potential for Job Creation. The application will be scored on 
the project's potential to create jobs, particularly jobs created 
directly by the project. Reviewers will assess the methodology used to 
calculate job estimates, the number and quality of the jobs created, 
and how the project balances job creation with cost efficiency.
    iii. Recovery Act and Other Governmental Collaboration. Applicants 
will be evaluated on their collaboration with Recovery Act or other 
State or Federal development programs that leverage the impact of the 
proposed

[[Page 3809]]

project. Examples include the Department of Energy's Smart Grid 
Investment Program, the Department of Housing and Urban Development's 
Public Housing Capital Fund, the Department of Transportation's Capital 
Assistance for High Speed Rail Corridors and Intercity Passenger 
Service program, and other investments where collaboration would lead 
to greater project efficiencies. In each case, the applicant must 
convincingly demonstrate that these leveraging efforts are substantive 
and meaningful.
    iv. Indian Tribes and Socially and Economically Disadvantaged Small 
Businesses. Reviewers will grant consideration to applicants that are 
Indian tribes or that certify that they meet the statutory definition 
of a socially and economically disadvantaged small business concern (as 
modified by the Small Business Administration's approval of NTIA's 
request to adopt an alternative small business concern size standard 
for use in BTOP), or that have established agreements in principle to 
partner or contract with Indian tribes or such socially and 
economically disadvantaged businesses.
b. Project Benefits (20 Points)
    i. Number of New Subscribers. Applications will be scored on the 
number of new broadband subscribers and other regular users the project 
will generate. Reviewers will take into consideration both the overall 
number of new subscribers and users and the proportion that these new 
subscribers and users represent of the number of non-subscribers and 
non-users in the relevant area. Reviewers also will consider the 
applicant's plan to effectively track and measure the benefits 
generated by the project.
    ii. Cost Per New User. Applications will be evaluated on the cost-
effectiveness of the program. Reviewers will consider the cost per 
projected new subscriber or other regular user, taking into account the 
applicant's explanation of why the approach selected is a cost-
effective approach given the particular circumstances of the project.
    iii. Innovation. Applications will be evaluated on the degree to 
which the project demonstrates replicable new ideas, approaches, and 
methods to encourage sustainable broadband adoption.
    iv. Support for Vulnerable Populations. Reviewers will evaluate 
applications on their level of support for vulnerable populations. In 
this regard, reviewers will assess both the numbers of people in 
vulnerable populations likely to be affected by the project as well as 
the steps that the applicant plans to take to engage and address the 
specific needs of those populations.
c. Project Viability (30 Points)
    i. Operational Feasibility of the Proposed Project. Reviewers will 
assess the operational details of the project. Applicants will be 
scored on the clarity and detail of their project plan and how 
convincing the rationale behind the plan is.
    ii. Applicant's Organizational Capability. Reviewers will assess 
whether the applicant has the organizational capability necessary to 
undertake and complete the project. Reviewers will consider the years 
of experience and expertise of the project management team and the past 
track record of the organization with projects of a similar size and 
scope, as well as the organization's capacity and readiness.
    iii. Level of Community Involvement in the Project. Reviewers will 
evaluate linkages to unaffiliated organizations in the project area 
(from the public, non-profit, and private sectors), particularly 
community anchor institutions and public safety organizations, as an 
ongoing and integral part of the project planning and operation. 
Applicants should demonstrate that each linkage is substantial and 
meaningful.
d. Project Budget and Sustainability (30 Points)
    i. Reasonableness of the Budget. Reviewers will evaluate the 
reasonableness of the budget based on its clarity, level of detail, 
comprehensiveness, appropriateness to the proposed technical and 
programmatic solutions, the reasonableness of its costs, and whether 
the allocation of funds is sufficient to complete the tasks outlined in 
the project plan.
    ii. Sustainability of the Project Impact. Reviewers will consider 
whether the increases in broadband adoption rates in the project area 
caused by the project will be sustained beyond the conclusion of the 
project.
    iii. Leverage of Outside Resources. Reviewers will consider whether 
the applicant has demonstrated the ability to provide, from non-Federal 
sources, funds required to meet or exceed the 20 percent matching funds 
requirement unless a waiver of that requirement has been requested. 
Reviewers also will give additional consideration to proposals that 
provide cash matches. For purposes of this evaluation, applicants that 
have received a full or partial waiver of the cost-matching requirement 
will be treated as having provided a 20 percent non-cash match.

VIII. Anticipated Announcement and Award Dates

    NTIA intends to announce BTOP Round 2 awards on a rolling basis 
starting in June 2010. All grants will be awarded by September 30, 
2010.

IX. Award Administration Information

A. Award Notices

    Applicants will be notified in writing by the Department of 
Commerce's (DOC) Grants Officer if their application is selected for an 
award. The DOC's Grants Officer notification will come from either the 
National Institute for Standards and Technology (NIST) or the National 
Oceanic and Atmospheric Administration (NOAA), both of which function 
as Grants Offices for the BTOP Program. If the application is selected 
for funding, the DOC's Grants Officer will issue the grant award (Form 
CD-450), which is the authorizing financial assistance award document, 
either electronically if from NOAA or in writing if from NIST. By 
signing the Form CD-450, the awardee agrees to comply with all award 
provisions, terms, and conditions. The awardee must sign and return the 
Form CD-450 to NIST or submit the executed form to NOAA by electronic 
means without modification within 30 days of receipt.
    If an applicant is awarded funding, neither the DOC nor NTIA is 
under any obligation to provide any additional future funding in 
connection with that award or to make any future award(s). Amendment of 
an award or to extend the period of performance is at the discretion of 
the DOC and of NTIA.

B. Administrative Requirements

    Administrative and national policy requirements for BTOP grant 
funding, inter alia, are contained in the Pre-Award Notification 
Requirements for Grants and Cooperative Agreements (DOC Pre-Award 
Notification),\64\ as amended. All BTOP applicants are required to 
comply with all applicable provisions set forth in the DOC Pre-Award 
Notification.
---------------------------------------------------------------------------

    \64\ The DOC Pre-Award Notification was published in the Federal 
Register on February 11, 2008. 73 FR 7696.
---------------------------------------------------------------------------

C. Award Terms and Conditions

1. Scope
    Awardees and subrecipients are required to comply with the 
obligations set forth in the Recovery Act and the requirements 
established herein. Any obligation that applies to the awardee

[[Page 3810]]

shall extend for the life of the award-funded facilities.
2. Sale or Lease of Project Assets
a. Restriction on Assets
    The sale or lease of any portion of the award-funded broadband 
facilities or equipment during the life of the facilities or equipment 
is prohibited, except as provided herein. Nothing in this section is 
meant to limit CCI awardees from leasing facilities to another service 
provider for the provision of broadband services, nor is this section 
meant to restrict a transfer of control of the awardee.\65\ Awardees 
are required to comply with all applicable regulations regarding the 
disposition of real property and equipment.\66\
---------------------------------------------------------------------------

    \65\ Note that certain equipment is exempt from obligations to 
the Federal government and may be used and sold at the awardee's 
will. See 15 CFR 14.34(g), 24.32.
    \66\ See, e.g., 15 CFR 14.32-14.34; 15 CFR 24.31-24.32.
---------------------------------------------------------------------------

b. Petition for Waiver
    NTIA will consider a petition for waiver of the above restriction 
if: (a) The transaction is for adequate consideration; (b) the 
purchaser or lessee agrees to fulfill the terms and conditions relating 
to the project after such sale or lease; and (c) the transaction would 
be in the best interests of those served by the project. The petition 
for waiver may be submitted at any time during the life of the award-
funded facilities and equipment, and it must include supporting 
documentation and justification regarding why the petition should be 
granted.
3. Access to Records for Audits, Site Visits, Monitoring, and Law 
Enforcement Purposes
    The Inspector General of the DOC, or any of his or her duly 
authorized representatives, and NTIA representatives, or any of their 
duly authorized representatives, shall have access to and the right to 
inspect the broadband system and any other property funded by the 
grant, any and all books, records, accounts, invoices, contracts, 
leases, payrolls, time sheets, canceled checks, statements, and other 
documents, papers, and records of the parties to a grant, including 
their subsidiaries, if any, whether written, printed, recorded, 
produced, or reproduced by any electronic, mechanical, magnetic, or 
other process or medium, in order to make audits, inspections, site 
visits, excerpts, transcripts, copies, or other examinations as 
authorized by law. An audit of an award may be conducted at any 
time.\67\
---------------------------------------------------------------------------

    \67\ Note that Section 1515 of the Recovery Act also authorizes 
the Inspector General to examine records and interview officers and 
employees of the grantee and other entities regarding the award of 
funds. See Recovery Act sec. 1515, 123 Stat. at 289.
---------------------------------------------------------------------------

4. Broadband Data Collection
    All CCI awardees that offer Internet access service to the public 
for a fee must agree to participate in the State Broadband Data and 
Development Grant Program pursuant to the BDIA and Section 6001(l) of 
the Recovery Act.
5. Certifications
    a. The applicant must certify that he or she is the duly Authorized 
Organization Representative (AOR) and has been authorized to submit the 
application on its behalf.
    b. The AOR must certify that he or she has examined the 
application, that all of the information and responses in the 
application, including certifications, and forms submitted, all of 
which are part of the grant application, are material representations 
of fact and are true and correct to the best of his or her knowledge; 
that the entity(ies) that is requesting grant funding pursuant to this 
application as well as any subgrantees and subcontractors will comply 
with the terms, conditions, purposes, and Federal requirements of the 
grant program; that no kickbacks were paid to anyone; and that false, 
fictitious, or fraudulent statements or claims on this application are 
grounds for denial or termination of a grant award, and/or possible 
punishment by a fine or imprisonment as provided in 18 U.S.C. 1001 and 
civil violations of the False Claims Act.
    c. The AOR must certify that the entity(ies) he or she represents 
have and will comply with all applicable Federal, State, and local 
laws, rules, regulations, ordinances, codes, orders, and programmatic 
rules and requirements relating to the project. The AOR must 
acknowledge that failure to do so may result in rejection or 
deobligation of the grant or loan award. The AOR must acknowledge that 
failure to comply with all Federal and program rules could result in 
civil or criminal prosecution by the appropriate law enforcement 
authorities.
    d. The AOR must certify that the entity(ies) he or she represents 
has and will comply with all applicable administrative and Federal 
statutory, regulatory, and policy requirements set forth in the 
Department of Commerce Pre-Award Notification; \68\ the DOC Financial 
Assistance Standard Terms and Conditions; \69\ the DOC American 
Recovery and Reinvestment Act Award Terms (April 9, 2009); \70\ and any 
Special Award Terms and Conditions that are included by the Grants 
Officer in the award.
---------------------------------------------------------------------------

    \68\ See Department of Commerce Pre-Award Notification (Feb. 11, 
2008) available at http://oam.ocs.doc.gov/docs/GRANTS/GCA_manual.pdf.
    \69\ See Department of Commerce Financial Assistance Standard 
Terms and Conditions (Mar. 8, 2009) available at http://oamweb.osec.doc.gov/docs/GRANTS/DOC%2OSTCsMAR08Rev.pdf.
    \70\ See U.S. Department of Commerce American Recovery and 
Reinvestment Act Award Terms (Apr. 9, 2009) available at http://
oam..ocs..doc.gov/docs/ARRA%20DOC%20Award%20Terms%20Final%205-20-
09PDF.doc.pdf.
---------------------------------------------------------------------------

    e. The AOR must certify that any funds awarded to the entity(ies) 
he or she represents as a result of this application will not: (a) 
Result in any unjust enrichment as a result of support for non-
recurring costs through another Federal program for service in the area 
that would be served by the project described in this application; (b) 
duplicate any funds such entity(ies) receive under Federal universal 
service support programs administered by the Universal Service 
Administration Corporation (USAC); or (c) duplicate any funds such 
entity(ies) receive through grant or loan programs administered by RUS.
    f. The AOR must certify that the entity(ies) he or she represent 
has secured access to pay at least 20 percent of the total project cost 
or has petitioned the Assistant Secretary for a waiver of the matching 
requirement.

D. Reporting Requirements

1. General Recovery Act Requirements
    Any grant awarded under this NOFA shall be subject to the 
applicable statutes and regulations regarding reporting on Recovery Act 
funds.\71\ If Recovery Act funds are combined with other funds to fund 
or complete projects and activities, Recovery Act funds must be 
accounted for separately from other funds. Recipients of funds under 
this NOFA also must comply with the accounting requirements as 
established or referred to in this NOFA. For a complete list of the 
reporting requirements, see http://www.FederalReporting.gov.\72\
---------------------------------------------------------------------------

    \71\ See, e.g., Recovery Act sec. 1512(c), 123 Stat. at 287; 2 
CFR part 176; OMB, Interim Final Guidance for Federal Financial 
Assistance, 74 FR 18449 (Apr. 23, 2009); Implementing Guidance for 
Reports on Use of Funds Pursuant to the American Recovery and 
Reinvestment Act of 2009 (OMB M-09-21 June 22, 2009), available at 
http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-21.pdf.
    \72\ See infra Section X.V.1.

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[[Page 3811]]

2. BTOP-Specific Reporting Requirements
    In addition to the general Recovery Act reporting requirements, 
BTOP award recipients also must report to NTIA on the information 
requested below.\73\ The information requested will vary depending on 
the type of project being funded. Pursuant to the Recovery Act, NTIA 
will make these reports available to the public.\74\
---------------------------------------------------------------------------

    \73\ See id. sec. 6001(i)(1)-(2), 123 Stat. at 515.
    \74\ Id. sec. 6001(i)(1), 123 Stat. at 515.
---------------------------------------------------------------------------

a. All BTOP Award Recipients
    All BTOP award recipients must report on:
    i. The progress in achieving the project goals, objectives, and 
milestones as set forth in their applications;
    ii. Expenditure of grant funds and the amount of remaining grant 
funds; and
    iii. The amount of non-Federal investment being added to complete 
the project.
    If a recipient is permitted by NTIA to complete its project after 
two years, then it must specifically state in the applicable quarter 
when it has met 67 percent of its milestones and received 67 percent of 
its award funds.\75\ Reaching these thresholds will indicate that the 
recipient has ``substantially completed'' its project consistent with 
the Recovery Act.\76\
---------------------------------------------------------------------------

    \75\ See supra Section V.D.
    \76\ Recovery Act sec. 6001(d)(3), 123 Stat. at 513.
---------------------------------------------------------------------------

b. Comprehensive Community Infrastructure Award Recipients
    Recipients receiving CCI grants must report on the following:
    i. The terms of any interconnection agreements entered into during 
the reporting period;
    ii. Any traffic exchange relationships (e.g., peering) and terms;
    iii. Any broadband equipment purchases;
    iv. The total and peak utilization of access links;
    v. The total and peak utilization of interconnection links to other 
networks;
    vi. Internet protocol address utilization and IPv6 implementation;
    vii. Any changes or updates to network management practices;
    viii. Any average end-user and Middle Mile megabit per second 
increases;
    ix. The total market potential for households, businesses, and 
community anchor institutions in the area served;
    x. The number of households and businesses passed, subscribing to 
broadband service, subscribing to new broadband service, and receiving 
improved access;
    xi. The number and type of community anchor institutions passed, 
subscribing to broadband service, subscribing to new broadband service, 
and receiving improved access;
    xii. The advertised and averaged broadband speeds;
    xiii. The number of existing network miles deployed, new network 
miles deployed, and new network miles leased;
    xiv. For projects with a Middle Mile component, the ``cost per 
mile,'' ``cost per household,'' and, if applicable, ``cost per tower'' 
to offer broadband service;
    xv. For projects with a Last Mile component, the ``cost per 
household'' and ``cost per subscriber'' to offer broadband service; and
    xvi. The price of the broadband services.
c. Public Computer Center Award Recipients
    Recipients receiving PCC grants must report on the following:
    i. The number of new and upgraded public computer centers;
    ii. The number of new and upgraded workstations available to the 
public;
    iii. The total hours of operation per week that the public computer 
center(s) is open;
    iv. The speed of broadband to the public computer center(s);
    v. The primary uses of the public computer center(s);
    vi. The average number of users per week in the public computer 
center(s);
    vii. The total hours per week of training provided at the public 
computer center(s);
    viii. The number and cost of any broadband equipment deployed; and
    ix. The total project cost per workstation.
d. Sustainable Broadband Adoption Award Recipients
    Recipients receiving SBA grants must report on the following:
    i. The technology being fostered;
    ii. Efforts to aggregate demand for each location, including the 
role of the local community;
    iii. The increase in the number of households, businesses, and 
community anchor institutions subscribing to broadband service, and the 
methodology used to measure the increase;
    iv. The number and type of awareness campaigns provided, including 
the total number of individuals reached;
    v. The number and cost of any broadband customer premises equipment 
or end-user devices deployed;
    vi. The total market potential for households, businesses, and 
community anchor institutions in the area served; and
    vii. Other program elements as proposed by the applicant and agreed 
to by NTIA.
3. Reporting Deadlines
    All reports are due ten days after the quarter in which the award 
was issued ends and, unless otherwise noted, each quarter thereafter 
until a final report is made at the end of three years or sooner 
depending on when the project is completed. The final report should 
summarize the recipient's quarterly filings and State whether the 
project's goals have been satisfied. Pursuant to OMB Guidelines, 
Recovery Act reports should be submitted electronically to http://www.FederalReporting.gov. The BTOP-specific reports should be sent to 
NTIA.
    If the recipient fails to submit an acceptable quarterly report or 
audited financial statement within the timeframe designated in the 
grant award, NTIA may take appropriate actions, including suspension of 
payments, suspension of award, or termination.\77\ Additional 
information regarding reporting requirements will be specified at the 
time the award is issued.
---------------------------------------------------------------------------

    \77\ DOC Grants Manual, ch. 11, sec. B.
---------------------------------------------------------------------------

X. Other Information

A. Funding Rounds

    This is the second of two announced funding rounds. NTIA does not 
anticipate further funding rounds, although it reserves the right to 
release a subsequent NOFA to ensure that all BTOP funds are awarded by 
September 30, 2010.

B. Discretionary Awards

    The government is not obligated to make any award as a result of 
this announcement, and will fund only projects that are deemed likely 
to achieve the Program's goals and for which funds are available.

C. Third Party Beneficiaries

    BTOP is a discretionary grant program that is not intended to and 
does not create any rights enforceable by third party beneficiaries, 
except sub-recipients or subcontractors.

D. Limitation on Expenditures

    The Recovery Act imposes an additional limitation on the use of 
funds expended or obligated from appropriations made pursuant to its 
provisions. Specifically, for purposes of this NOFA, funds appropriated 
or otherwise made available under the Recovery Act may not be used by 
any State or local government, or any private

[[Page 3812]]

entity, for any casino or other gambling establishment, aquarium, zoo, 
golf course, or swimming pool.\78\
---------------------------------------------------------------------------

    \78\ Id. sec. 1604, 123 Stat. at 303.
---------------------------------------------------------------------------

E. Recovery Act Logo

    All projects that are funded by the Recovery Act shall display 
signage that features the Primary Emblem throughout the construction 
phase. The signage should be displayed in a prominent location on site. 
Some exclusions may apply. The Primary Emblem should not be displayed 
at a size less than six inches in diameter.

F. Environmental and National Historic Preservation Requirements

    Awarding agencies are required to analyze the potential 
environmental impacts, as required by the National Environmental 
Protection Act (NEPA) and the National Historic Preservation Act 
(NHPA), for applicant proposals and awardee projects seeking Recovery 
Act funding.\79\ All CCI applicants and PCC applicants with projects 
containing construction and/or ground disturbing activities are 
required to complete the Environmental Questionnaire in the application 
and to submit all other required environmental documentation as 
necessary. All PCC applicants with projects that do not contain 
construction and/or ground disturbing activities and all SBA applicants 
are required to complete the DOC Environmental Checklist in the 
application.
---------------------------------------------------------------------------

    \79\ In addition, there are documents relating to NEPA and NHPA 
requirements that have been developed specifically for BTOP that are 
outlined more fully in the BTOP Grant Guidance.
---------------------------------------------------------------------------

    It is the applicant's responsibility to obtain all necessary 
Federal, State, and local governmental permits and approvals necessary 
for the proposed work to be conducted. Applicants are expected to 
design their projects so that they minimize the potential for adverse 
impacts on the environment. Applicants also will be required to 
cooperate with NTIA in identifying feasible measures to reduce or avoid 
any identified adverse environmental impacts of their proposed 
projects. The failure to do so may be grounds for not making an award. 
Applications will be reviewed to ensure that they contain sufficient 
information to allow agency staff to conduct a NEPA analysis so that 
appropriate NEPA documentation can be submitted to NTIA, along with the 
recommendation for funding of the selected applications.
    If additional information is required after an application is 
accepted for funding, funds can be withheld by NTIA under a special 
award condition requiring the awardee to submit additional 
environmental compliance information sufficient for the agency to make 
an assessment of any impacts that a project may have on the 
environment.

G. Davis-Bacon Wage Requirements

    Pursuant to Section 1606 of the Recovery Act, any project using 
Recovery Act funds requires the payment of not less than the prevailing 
wages ``at rates not less than those prevailing on projects of a 
character similar in the locality as determined by the Secretary of 
Labor,'' in accordance with 40 U.S.C. 3142(b), for ``all laborers and 
mechanics employed by contractors and subcontractors on projects funded 
directly by or assisted in whole or in part by and through the Federal 
Government.'' \80\ With respect to the labor standards specified in 
this section, the Secretary of Labor shall have the authority and 
functions set forth in Reorganization Plan Numbered 14 of 1950 (64 
Stat. 1267; 5 U.S.C. App.) and Section 3145 of Title 40, United States 
Code.
---------------------------------------------------------------------------

    \80\ Recovery Act sec. 1606, 123 Stat. at 303.
---------------------------------------------------------------------------

H. Financial and Audit Requirements

    To maximize the transparency and accountability of funds authorized 
under the Recovery Act, all applicants are required to comply with the 
applicable regulations set forth in OMB's Interim Final Guidance for 
Federal Financial Assistance.\81\
---------------------------------------------------------------------------

    \81\ See OMB, Interim Final Guidance for Federal Financial 
Assistance, 74 FR 18449.
---------------------------------------------------------------------------

    Recipients that expend $500,000 or more of Federal funds during 
their fiscal year are required to submit an organization-wide financial 
and compliance audit report. The audit must be performed in accordance 
with the U.S. Government Accountability Office's Government Auditing 
Standards, located at http://www.gao.gov/govaud/ybk01.htm, and OMB 
Circular A-133, Audits of States, Local Governments, and Nonprofit 
Organizations, located at http://www.whitehouse.gov/omb/circulars/a133/a133.html . For-profit awardees must comply with the Program specific 
audit requirements set forth in OMB Circular A-133, Subpart B, Sec.  --
--.235. Awardees are responsible for ensuring that sub-recipient audit 
reports are received and for resolving any audit findings.

I. Deobligation

    NTIA reserves the right to deobligate awards made under this NOFA 
to recipients that demonstrate an insufficient level of performance, or 
wasteful or fraudulent spending, and to award these funds competitively 
to new or existing applicants.

J. Confidentiality of Applicant Information

    Applicants are encouraged to identify and label any confidential 
and proprietary information contained in their applications. NTIA will 
protect confidential and proprietary information from public disclosure 
to the fullest extent authorized by applicable law, including the 
Freedom of Information Act, as amended (5 U.S.C. 552), the Trade 
Secrets Act, as amended (18 U.S.C. 1905), and the Economic Espionage 
Act of 1996 (18 U.S.C. 1831 et seq.). Applicants should be aware, 
however, that the Recovery Act requires substantial transparency. For 
example, NTIA is required to make publicly available on the Internet a 
list of each entity that has applied for a grant, a description of each 
application, the status of each application, the name of each entity 
receiving funds, the purpose for which the entity is receiving the 
funds, each quarterly report, and other information regarding 
awardees.\82\
---------------------------------------------------------------------------

    \82\ See Recovery Act sec. 6001(i)(5), 123 Stat. at 515.
---------------------------------------------------------------------------

K. Policy on Sectarian Activities

    NTIA encourages applications from faith-based organizations. On 
December 22, 1995, NTIA issued a Notice in the Federal Register on its 
policy with regard to sectarian activities. Under NTIA's policy, while 
religious activities cannot be the essential thrust of a grant, an 
application will be eligible for a grant under the Program where 
sectarian activities are only incidental or attenuated to the overall 
project purpose for which funding is requested.\83\
---------------------------------------------------------------------------

    \83\ 60 FR 66491 (Dec. 22, 1995).
---------------------------------------------------------------------------

L. Disposition of Unsuccessful Applications

    Applications accepted for review for BTOP will be retained for two 
years, after which they will be destroyed.

M. State Certifications

    With respect to funds made available under the Recovery Act to 
State or local governments for infrastructure investments, the 
governor, mayor, or other chief executive, as appropriate, must certify 
that the infrastructure investment has received the full review and 
vetting required by law and that the chief executive accepts 
responsibility that the infrastructure investment is an appropriate use 
of taxpayer dollars. This certification must include a description of 
the investment, the estimated total cost, and the amount of funds to be

[[Page 3813]]

used, and must be posted on the recipient's Web site and linked to 
http://www.recovery.gov. A State or local agency may not receive 
infrastructure investment funding from funds made available under the 
Recovery Act unless this certification is made and posted.\84\
---------------------------------------------------------------------------

    \84\ See Recovery Act sections 1511, 1526, 123 Stat. at 287, 
293.
---------------------------------------------------------------------------

N. Waiver Authority

    It is the general intent of NTIA not to waive any of the provisions 
set forth in this NOFA. However, under extraordinary circumstances and 
when it is in the best interest of the Federal government, NTIA, upon 
its own initiative or when requested by an applicant, may waive any of 
the provisions in this NOFA. Waivers may only be granted for 
requirements that are discretionary and not mandated by statute or 
other applicable law. Any request for a waiver must set forth the 
extraordinary circumstances for the request and be submitted with the 
application.
    With respect to requests for waiver of Section VI.E. (filing 
instructions), further information regarding the procedures for seeking 
such waivers will be made available in the Grant Guidance.

O. Compliance With Applicable Laws

    Any recipient of funds under this NOFA shall be required to comply 
with all applicable Federal and State laws, including but not limited 
to: (i) The nondiscrimination and equal employment opportunity 
requirements of Title VI of the Civil Rights Act of 1964, as amended 
(42 U.S.C. 2000e et seq., 7 CFR pt. 15); (ii) Section 504 of the 
Rehabilitation Act (29 U.S.C. 794 et seq.; 7 CFR part 15b); (iii) the 
Age Discrimination Act of 1975, as amended (42 U.S.C. 6101 et seq.; 45 
CFR part 90); (iv) the Architectural Barriers Act of 1968, as amended 
(42 U.S.C. 4151 et seq.); (v) the Uniform Federal Accessibility 
Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6); and (vi) the 
Council on Environmental Quality Regulations for Implementing the 
Procedural Provisions of NEPA, and certain related Federal 
environmental laws, statutes, regulations, and Executive Orders found 
in 7 CFR part 1794.

P. Communications Laws

    Awardees, and in particular, CCI awardees, will be required to 
comply with all applicable Federal and State communications laws and 
regulations as applicable, including, for example, the Communications 
Act of 1934, as amended (47 U.S.C. 151 et seq.); the Telecommunications 
Act of 1996, as amended (Pub. L. 104-104, 110 Stat. 56 (1996)); and the 
Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et 
seq.) (CALEA). For further information, see http://www.fcc.gov.

Q. Buy American Notice

1. General Prohibition and Waiver
    None of the funds appropriated or otherwise made available by the 
Recovery Act may be used for the construction, alteration, maintenance, 
or repair of a public building or public work (as such terms are 
defined in 2 CFR 176.140) unless all of the iron, steel, and 
manufacturing goods used in the project are produced in the United 
States.\85\ On July 1, 2009, the Department of Commerce published a 
notice in the Federal Register stating that the Secretary of Commerce 
had determined that applying the Buy American provision for the use of 
certain broadband equipment in public BTOP projects would be 
inconsistent with the public interest.\86\
---------------------------------------------------------------------------

    \85\ Id. sec. 1605, 123 Stat. at 303.
    \86\ See 74 FR 31402 (July 1, 2009).
---------------------------------------------------------------------------

    As explained below, to the extent that an applicant wishes to use 
broadband equipment or goods that are not covered by the Secretary's 
waiver, it may seek an additional waiver on a case-by-case basis as 
part of its application for Recovery Act funds.
2. OMB Buy American Notice Requirement
    Pursuant to OMB guidance on the Recovery Act,\87\ NTIA is required 
to provide notice as prescribed in 2 CFR 176.170.
---------------------------------------------------------------------------

    \87\ See 2 CFR part 176.
---------------------------------------------------------------------------


Sec.  176.170  Notice of Required Use of American Iron, Steel, and 
Manufactured Goods (covered under International Agreements)--Section 
1605 of the American Recovery and Reinvestment Act of 2009.

    When requesting applications or proposals for Recovery Act programs 
or activities that may involve construction, alteration, maintenance, 
or repair of a public building or public work, and involve iron, steel, 
and/or manufactured goods covered under international agreements, the 
agency shall use the notice described in the following paragraphs in 
the solicitation:
    (a) Definitions. Designated country iron, steel, and/or 
manufactured goods, foreign iron, steel, and/or manufactured goods, 
manufactured goods, public building and public work, and steel, as used 
in this provision, are defined in 2 CFR 176.160(a).
    (b) Requests for determinations of inapplicability. A prospective 
applicant requesting a determination regarding the inapplicability of 
Section 1605 of the American Recovery and Reinvestment Act of 2009 
(Pub. L. 111-5) (Recovery Act) should submit the request to the award 
official in time to allow a determination before submission of 
applications or proposals. The prospective applicant shall include the 
information and applicable supporting data required by 2 CFR 176.160(c) 
and (d) in the request. If an applicant has not requested a 
determination regarding the inapplicability of Section 1605 of the 
Recovery Act before submitting its application or proposal, or has not 
received a response to a previous request, the applicant shall include 
the information and supporting data in the application or proposal.
    (c) Evaluation of project proposals. If the Federal Government 
determines that an exception based on unreasonable cost of domestic 
iron, steel, and/or manufactured goods applies, the Federal Government 
will evaluate a project requesting exception to the requirements of 
Section 1605 of the Recovery Act by adding to the estimated total cost 
of the project 25 percent of the project cost if foreign iron, steel, 
or manufactured goods are used based on unreasonable cost of comparable 
domestic iron, steel, or manufactured goods.
    (d) Alternate project proposals.
    (1) When a project proposal includes foreign iron, steel, and/or 
manufactured goods, other than designated country iron, steel, and/or 
manufactured goods, that are not listed by the Federal Government in 
this Buy American notice in the request for applications or proposals, 
the applicant may submit an alternate proposal based on use of 
equivalent domestic or designated country iron, steel, and/or 
manufactured goods.
    (2) If an alternate proposal is submitted, the applicant shall 
submit a separate cost comparison table prepared in accordance with 
paragraphs 2 CFR 176.160(c) and (d) for the proposal that is based on 
the use of any foreign iron, steel, and/or manufactured goods for which 
the Federal Government has not yet determined an exception applies.
    (3) If the Federal Government determines that a particular 
exception requested in accordance with 2 CFR 176.160(b) does not apply, 
the Federal Government will evaluate only those proposals based on use 
of the equivalent domestic or designated country iron,

[[Page 3814]]

steel, and/or manufactured goods, and the applicant shall be required 
to furnish such domestic or designated country items.

R. Executive Order 12866

    This notice has been determined to be ``economically significant'' 
under Executive Order 12866.\88\ The Recovery Act appropriates $4.7 
billion to NTIA for broadband grants and other purposes. Awards must be 
made no later than September 30, 2010. In accordance with Executive 
Order 12866, NTIA updated its economic analysis, which was completed 
for the first round of funding and outlined the costs and benefits of 
implementing BTOP, to reflect the changes made to the Program for the 
second round of funding. The complete analyses are available from NTIA 
upon request.
---------------------------------------------------------------------------

    \88\ Exec. Order No. 12,866, 58 FR 51735 (Sept. 30, 1993).
---------------------------------------------------------------------------

S. Executive Order 13132

    It has been determined that this notice does not contain policies 
with Federalism implications as that term is defined in Executive Order 
13132.\89\
---------------------------------------------------------------------------

    \89\ Exec. Order No. 13,132, 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------

T. Administrative Procedure Act Statement

    This NOFA is being issued without advance rulemaking or public 
comment under the Administrative Procedure Act of 1946, as amended (5 
U.S.C. 553) (APA). The APA has several exemptions to rulemaking 
requirements. Among them is an exemption for ``good cause'' found at 5 
U.S.C. 553(b)(B), which allows effective government action without 
rulemaking procedures where withholding the action would be 
``impracticable, unnecessary, or contrary to the public interest.''
    The DOC has determined, consistent with the APA, that making these 
funds available under this NOFA for broadband development, as mandated 
by the Recovery Act, is in the public interest. Given the emergency 
nature of the Recovery Act and the extremely short time period within 
which all funds must be obligated, withholding this NOFA to provide for 
public notice and comment would unduly delay the provision of benefits 
associated with these broadband initiatives and be contrary to the 
public interest.
    For the same reasons, NTIA finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effectiveness for this action. 
Because notice and opportunity for comment are not required pursuant to 
5 U.S.C. 553(d)(3) or any other law, the analytical requirements of the 
Regulatory Flexibility Act of 1980, as amended (5 U.S.C. 601 et seq.) 
are inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.

U. Congressional Review Act

    NTIA has submitted this NOFA to the Congress and the Government 
Accountability Office under the Congressional Review of Agency 
Rulemaking Act (Congressional Review Act), 5 U.S.C. 801 et seq. It has 
been determined that this NOFA is a ``major action'' within the meaning 
of the Act because it will result in an annual effect on the economy of 
$100,000,000 or more. This NOFA sets out the administrative procedures 
for making grants totaling approximately $2.6 billion to implement a 
nationwide broadband initiative to expand the reach and quality of 
broadband services in the United States.
    With funds made available through the Recovery Act, BTOP will 
provide a total of $4.7 billion through NTIA to provide broadband 
grants throughout the United States for unserved and underserved 
communities, to increase public computer center capacity, and to 
encourage sustainable adoption of broadband services. The Recovery Act 
provides that BTOP awards must be made no later than September 30, 
2010. Moreover, projects funded under the Program must be substantially 
completed no later than two years following the date of issuance of the 
award. A 60-day delay in implementing this NOFA pursuant to the 
Congressional Review Act would hamper NTIA's mission to provide 
expeditiously assistance to eligible entities to begin and complete 
projects within the statutory requirements of the Recovery Act.
    Thus, NTIA finds good cause under 5 U.S.C. 808(2) that prior notice 
and public procedure are impracticable, unnecessary, and contrary to 
the public interest. To the extent that NTIA provided a 60-day delay in 
effectiveness pursuant to the Congressional Review Act, NTIA would not 
be able to execute the statutory duties required by the Recovery Act in 
a timely manner. This finding is consistent with the objectives of the 
Recovery Act, which specifically provides clear preferences for rapid 
agency action and quick-start activities designed to spur job creation 
and economic benefit. Accordingly, this NOFA shall take effect upon 
publication in the Federal Register.

V. Paperwork Reduction Act

1. Reporting and Registration Requirement Under Section 1512(c) of the 
Recovery Act
    The Recovery Act requires the recipient of an award to complete 
projects or activities that are funded under the Recovery Act and to 
report on the use of Recovery Act funds provided through the award.\90\ 
Information from these reports will be made available to the public. 
The recipient shall submit its first report no later than 10 calendar 
days after the end of the initial calendar quarter in which the 
recipient receives the assistance award funded in whole or in part by 
the Recovery Act.\91\ Thereafter, the recipient shall submit reports no 
later than the tenth day after the end of each calendar quarter.\92\ 
The recipient and its sub-recipients must maintain current 
registrations in the CCR (http://www.ccr.gov) at all times during which 
they have active Federal awards funded with Recovery Act funds. A DUNS 
number is one of the requirements for registration in the CCR. The 
recipient shall report the information described in Section 1512(c) of 
the Recovery Act using the reporting instructions and data elements 
that will be provided online at http://www.FederalReporting.gov unless 
the information is pre-populated.
---------------------------------------------------------------------------

    \90\ Recipients who fail to submit reports pursuant to Section 
1512(c) of the Recovery Act are considered to be non-compliant. Non-
compliant recipients, including those who are persistently late or 
negligent in their reporting obligations, are subject to Federal 
action, up to and including the termination of Federal funding or 
the ability to receive Federal funds in the future. Memorandum for 
the Heads of Executive Departments and Agencies re: Improving 
Compliance in Recovery Act Recipient Reporting (OMB M-10-05 November 
30, 2009), available at http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-05.pdf.
    \91\ Recovery Act sec. 1512(c), 123 Stat. at 287.
    \92\ Id.
---------------------------------------------------------------------------

2. NTIA's Additional Paperwork Reduction Act Analysis
    Copies of all forms, regulations, and instructions referenced in 
this NOFA may be obtained from NTIA. Data furnished by the applicants 
will be used to determine eligibility for Program benefits. Furnishing 
the data is voluntary; however, the failure to provide data could 
result in Program benefits being withheld or denied.
    The collection of information is vital to NTIA to ensure compliance 
with the provisions of this NOFA and to fulfill the requirements of the 
Recovery Act. In summary, the collection of information is necessary in 
order to implement the Program.

[[Page 3815]]

    The following estimates are based on the average over the first 
three years the Program is in place.

Comprehensive Community Infrastructure

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 225 hours per response.
    Respondents: States, local governments, and any agency, 
subdivision, instrumentality, or political subdivision thereof; the 
District of Columbia; a territory or possession of the United States; 
an Indian tribe (as defined in Section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b)); a native 
Hawaiian organization; a nonprofit foundation, a non-profit 
corporation, a non-profit institution, or a non-profit association; 
other non-profit entities; for-profit corporations; limited liability 
companies; and cooperative or mutual organizations.
    Estimated Number of Respondents: 1,394.
    Estimated Number of Responses per Respondent: 1.27.
    Estimated Number of Responses: 1,770.
    Estimated Total Annual Burden (hours) on Respondents: 398,250.

Public Computer Center

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 128 hours per response.
    Respondents: States, local governments, and any agency, 
subdivision, instrumentality, or political subdivision thereof; the 
District of Columbia; a territory or possession of the United States; 
an Indian tribe (as defined in Section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b)); a native 
Hawaiian organization; a non-profit foundation, a non-profit 
corporation, a non-profit institution, or a non-profit association; 
other non-profit entities; for-profit corporations; limited liability 
companies; and cooperative or mutual organizations.
    Estimated Number of Respondents: 472.
    Estimated Number of Responses per Respondent: 1.23.
    Estimated Number of Responses: 581.
    Estimated Total Annual Burden (hours) on Respondents: 74,368.

Sustainable Broadband Adoption

    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 151 hours per response.
    Respondents: States, local governments, and any agency, 
subdivision, instrumentality, or political subdivision thereof; the 
District of Columbia; a territory or possession of the United States; 
an Indian tribe (as defined in Section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b)); a native 
Hawaiian organization; a non-profit foundation, a non-profit 
corporation, a non-profit institution, or a non-profit association; 
other non-profit entities; for-profit corporations; limited liability 
companies; and cooperative or mutual organizations.
    Estimated Number of Respondents: 382.
    Estimated Number of Responses per Respondent: 1.4.
    Estimated Number of Responses: 535.
    Estimated Total Annual Burden (hours) on Respondents: 80,785.
    The grant application forms for BTOP CCI, PCC, and SBA projects and 
the subsequent data collection will be submitted to OMB for review 
under the Paperwork Reduction Act of 1995. OMB control numbers will be 
assigned and published in separate Federal Register notices. 
Notwithstanding any other provision of law, no person is required to 
respond to, nor shall any person be subject to a penalty for failure to 
comply with a collection of information subject to the Paperwork 
Reduction Act unless that collection displays a currently valid OMB 
Control Number.

W. Recovery Act

    Additional information about the Recovery Act is available at 
http://www.Recovery.gov.

X. Authorized Signatories

    Only authorized grant officers can bind the Government to the 
expenditure of funds.

Appendix to Notice of Funds Availability--Broadband Technology 
Opportunities Program Policy Justification

Streamlining the Application

    During the initial round of funding, applicants had a choice to 
complete a Broadband Infrastructure application, a Public Computer 
Center (PCC) application, or a Sustainable Broadband Adoption (SBA) 
application, depending on the type of project being proposed. Those 
applicants considered highly qualified after completing Step One of 
the review process were required to submit additional information 
during the Step Two ``due diligence'' review to substantiate the 
representations provided in the application.\93\ During the initial 
round of funding, some stakeholders, especially those applicants 
completing the Broadband Infrastructure application, stated that 
completing the initial application was overly burdensome due to the 
type and amount of questions asked and the number of attachments 
required. RUS and NTIA tentatively concluded that the application 
process should be streamlined and invited public comment in the 
RFI.\94\
---------------------------------------------------------------------------

    \93\ See 74 FR at 33107.
    \94\ See 74 FR 58940, 58941 (Nov. 16, 2009).
---------------------------------------------------------------------------

    Commenters generally support the current two-step review process 
and the level of information and supporting documentation that NTIA 
requires.\95\ Only a small minority of commenters suggest doing away 
with the two-step review process in favor of a simplified one-step 
process modeled after NTIA's Technologies Opportunities Program.\96\ 
Additionally, while a minority of commenters advocate increasing the 
information requirements of Step One in order to validate the 
legitimacy of applications,\97\ most commenters urge that NTIA 
require less information initially and defer the collection of 
supplementary budget and financial information until the Step Two 
due diligence review.\98\ Commenters also argue that applicants 
should not be required to obtain engineering certifications,\99\ 
environmental reviews,\100\ or antenna sites and backhaul facilities 
\101\ until Step Two. To minimize the burden of the application and 
review process, commenters recommend that NTIA increase the amount 
of time available to applicants to submit due diligence 
materials.\102\
---------------------------------------------------------------------------

    \95\ See, e.g., RVW, Inc. at 1 (Nov. 30, 2009); Merit Network at 
1 (Nov. 30, 2009); City of Grover Beach at 1 (Nov. 30, 2009); Nemont 
Tel. Coop. at 1 (Nov. 30, 2009).
    \96\ See, e.g., Hous. Opportunities & Concepts at 1 (Nov. 25, 
2009); Wireless Internet Serv. Providers Ass'n (WISPA) at 3-6 (Nov. 
30, 2009).
    \97\ See, e.g., Nemont Tel. Coop. at 1; Mont. Indep. Telecomms. 
Sys. at 3 (Nov. 30, 2009); Nat'l Rural Telecomms. Coop. & 
DigitalBridge Commc'ns at 2 (Nov. 30, 2009).
    \98\ See, e.g., Fla.'s Heartland REDI at 1-2 (Nov. 30, 2009); 
Am. Library Ass'n at 5-6 (Nov. 30, 2009); Wis. Dep't of Pub. 
Instruction at 2 (Nov. 30, 2009); Sch., Health, & Libraries 
Broadband Coal. at 8 (Nov. 30, 2009).
    \99\ See, e.g., Commonwealth of Pa. at 1-3 (Nov. 25, 2009); 
WISPA at 3-6; E. Or. Telecom at 1 (Nov. 19, 2009).
    \100\ See, e.g., Ctr. for Soc. Inclusion at 2 (Nov. 30, 2009); 
Rural Broadband Corp. at 11-13 (Nov. 30, 2009); Commonwealth of Pa. 
at 1-3.
    \101\ See, e.g., Penasco Valley Tel. Coop. at 2 (Nov. 30, 2009).
    \102\ See, e.g., Vantage Point Solutions at 10-11 (Nov. 30, 
2009); Nat'l Educ. Broadband Serv. Ass'n at 3 (Nov. 30, 2009); 
Internet2 at 26-27 (Nov. 30, 2009); Rural Broadband Corp. at 6.
---------------------------------------------------------------------------

    NTIA concludes that it will modify aspects of the two-step 
review process to collect the most essential information upfront in 
the application, with the option to collect additional data during 
the due diligence review, as needed.
    Commenters also offer numerous technical changes that would help 
streamline the application submission process during this round of 
funding. Commenters recommend that the Easygrants[supreg] System be 
tested for

[[Page 3816]]

stability and usability \103\ and modified to accept alternative 
documents, such as graphical project timelines.\104\ Multiple 
respondents advocate improving the mapping tool by creating separate 
versions for Last Mile and Middle Mile applications or by allowing 
applicants to submit mapping data in a number of different forms, 
including computer-aided design (CAD) or geographic information 
system (GIS) format.\105\
---------------------------------------------------------------------------

    \103\  See, e.g., Tex. A&M at 1 (Nov. 29, 2009); City of Grover 
Beach at 1.
    \104\ See, e.g., City of Seattle at 3 (Nov. 30, 2009); Penasco 
Valley Tel. Coop. at iv, 3; City of N.Y. at 3 (Nov. 30, 2009).
    \105\ See, e.g., Rural Broadband Now! at 5 (Nov. 30, 2009); 
Nat'l Educ. Broadband Serv. Ass'n at 4 (Nov. 30, 2009); Mid-Rivers 
Commc'ns at 3-4 (Dec. 1, 2009).
---------------------------------------------------------------------------

    Commenters suggest achieving consistency between the application 
forms and guidance materials \106\ and eliminating redundant 
questions, particularly those duplicating the Executive Summary 
requirements.\107\ Commenters also suggest that eliminating or 
altering a number of attachments, including the engineering 
certification \108\ and financial documentation,\109\ would 
significantly improve the applicant experience.
---------------------------------------------------------------------------

    \106\ See, e.g., Mass. Executive Office of Hous. and Econ. Dev. 
at 5 (Nov. 30, 2009); NATOA at 20 (Nov. 30, 2009).
    \107\ See, e.g., FiberTower Corp. at 3-4 (Nov. 30, 2009); Cal. 
Broadband Coop. at 3 (Nov. 30, 2009).
    \108\ See, e.g., Ass'n of Commc'ns Engineers at 1-2 (Nov. 30, 
2009); WHRO-TV at 1 (Nov. 30, 2009).
    \109\ See, e.g., Hostos Cmty. Coll. at 1 (Nov. 30, 2009); City 
of Philadelphia at 4 (Nov. 30, 2009); Broadband Satellite Commenters 
at 10 (Nov. 30, 2009).
---------------------------------------------------------------------------

    NTIA agrees with commenters that the application process can be 
more user-friendly. Accordingly, it makes numerous adjustments to 
the online application system to streamline the intake of 
information and reduce applicant burden. These steps include 
separating the BTOP infrastructure application from the BIP 
infrastructure application, consistent with the independent 
administration of the BIP and BTOP programs, separating the PCC 
application from the SBA application, as well as eliminating the 
requirement to use the mapping tool to create proposed funded 
service areas. NTIA also makes it easier for applicants filing 
applications in multiple project categories to link these 
applications in furtherance of NTIA's focus on comprehensive 
communities. NTIA further simplifies the application requirements, 
including eliminating the submission of an engineering certification 
form with the initial application.
    A majority of the commenters advocate abandoning Census blocks 
in favor of other means of specifying proposed funded service 
areas.\110\ Commenting municipalities and cities unanimously express 
their dissatisfaction with the use of Census block data, citing it 
as a cumbersome method of reporting proposed funded service area 
designations.\111\ Multiple commenters offer zip codes, city 
boundaries, or even latitude and longitude coordinates as less 
burdensome alternatives for applicants.\112\ Several commenters 
propose using Census tract data as a less burdensome alternative to 
Census block data, in part because broadband service providers are 
already required to report their subscriber and demographic 
information according to Census tracts in order to file FCC Form 
477.\113\
---------------------------------------------------------------------------

    \110\ See, e.g., NCTH-Cleartalk at 1 (Nov. 21, 2009); 
Commonwealth of Pa. at 4; Satellite Indus. Ass'n at 4 (Nov. 30, 
2009); New Am. Found. at 21 (Nov. 30, 2009).
    \111\ See, e.g., Montgomery County at 2 (Nov. 30, 2009); Oakland 
County at 1 (Nov. 30, 2009); City of N.Y. at 2; City of San 
Francisco at 3 (Nov. 30, 2009).
    \112\ See, e.g., Open Range Commc'ns at 4 (Nov. 30, 2009); Ctr. 
of Soc. Inclusion at 2; Harris Corp at iii (Nov. 30, 2009).
    \113\ See, e.g., John Staurulakis, Inc. at 14 (Nov. 30, 2009); 
Rural Broadband Corp. at 7.
---------------------------------------------------------------------------

    NTIA agrees with commenters that requiring applicants to provide 
proposed funded service areas by Census block data is overly 
burdensome, especially when applicants could use other methods to 
indicate these areas. In this funding round, NTIA will instead 
require applicants to indicate their proposed funded service area 
using Census block groups or Census tracts.

Relationship Between BIP and BTOP

    Because the Recovery Act prohibits a project from receiving 
funding from NTIA in areas where RUS has funded a project, the First 
NOFA required applicants whose proposed funded service areas were at 
least 75 percent rural to submit infrastructure applications to RUS 
for consideration under BIP, with the option of additional 
consideration under BTOP. The First NOFA provided that NTIA would 
not fund such an application unless RUS had declined to fund it. In 
response to informal comments from stakeholders during the initial 
round of funding, the agencies' RFI invited public comment on 
whether the agencies should continue to require that these kinds of 
rural infrastructure applications be submitted to RUS first or 
whether the agencies should permit applicants to file largely rural 
applications directly to NTIA without also having to submit them to 
RUS.\114\
---------------------------------------------------------------------------

    \114\ See 74 FR at 58941.
---------------------------------------------------------------------------

    The majority of commenters agree that rural applicants should be 
permitted to apply directly to NTIA for BTOP grants without being 
required first to apply to RUS for BIP loans or grants.\115\ The 
most widely cited rationale was the needless burden imposed on 
applicants to provide the additional financial analysis required by 
the RUS loan application for rural projects that do not qualify as 
remote and unserved or are not viable with only 50 percent grant 
funding.\116\ Commenters also cite the inefficiency of requiring RUS 
to review proposals that are not even viable for BIP.\117\
---------------------------------------------------------------------------

    \115\ See, e.g., Mass. Executive Office of Hous. and Econ. Dev. 
at 3-4; Am. Library Ass'n at 7.
    \116\ See, e.g., TCA at 1-2 (Nov. 30, 2009).
    \117\ See, e.g., XO Commc'ns at 2 (Nov. 30, 2009); TCA at 1-2.
---------------------------------------------------------------------------

    A majority of commenters favor the continued use of a common 
BIP-BTOP application to avoid the duplicative effort of completing 
multiple applications.\118\ A few of these commenters favor 
maintaining the approach taken in the initial round of funding that 
required concurrent joint applications and reserving to RUS the 
first option to fund eligible proposals.\119\ The chief benefit 
adduced in support of this position is RUS's expertise in evaluating 
rural applications so as to avoid redundant awards to ``active'' RUS 
borrowers.\120\ Commenters further recommend that the agencies 
implement a ``check box'' by which an applicant may request 
immediate consideration by NTIA because its rural project requires 
more than a 50 percent grant to be viable or seeks to address one of 
NTIA's broadband objectives \121\ and allow applicants to produce 
only one financial analysis to demonstrate an ability to support 
either a 50 percent contribution (as required for BIP) or a 20 
percent contribution (as required for BTOP) to a project.\122\
---------------------------------------------------------------------------

    \118\ See, e.g., Tex. Statewide Tel. Coop. at 5 (Nov. 25, 2009).
    \119\ See, e.g., Vantage Point Solutions at 5-7; Rural Cmty. 
Assistance P'ship at 2 (Nov. 19, 2009); RVW Inc. at 2; Mid-Rivers 
Commc'ns at 6-7 (Dec. 1, 2009); S.D. Telecomms. Ass'n at 5, 11 (Nov. 
30, 2009).
    \120\ See, e.g., Mid-Rivers Commc'ns at 6.
    \121\ See, e.g., Nat'l Rural Telecomms. Coop. & DigitalBridge 
Commc'ns Corp. at 6-7 (Nov. 30, 2009).
    \122\ See, e.g., John Staurulakis, Inc. at 18; TCA at 1-2.
---------------------------------------------------------------------------

    In this funding round, RUS and NTIA conclude that applicants 
that are eligible for both BIP and BTOP have the option to apply to 
either agency for funding for the same project, but applicants 
should apply to only one agency for a given project. Applicants who 
are current RUS borrowers or grantees, applicants who are proposing 
a Last Mile service area that is 75 percent or more rural, or 
applicants whose Last Mile component (to residential consumers and 
non-community anchor institutions) exceeds 20 percent of total 
eligible project costs are strongly encouraged to apply to RUS for 
funding under BIP.
    Mindful of the statutory prohibition against duplicative 
funding, several parties suggest that RUS and NTIA might coordinate 
their funding determinations to leverage Federal resources most 
efficiently and effectively by having NTIA fund only grants and RUS 
fund only loans for rural projects; \123\ awarding preference for 
BIP loans to applicants that apply to RUS first; \124\ considering 
projects that are 75 percent rural for BTOP grant-only financing to 
leverage existing infrastructure and cooperative relationships 
(e.g., wireless network via rural electric cooperative); \125\ and 
avoiding the appearance of duplicative funding by not funding in 
areas where BIP loans are active or have been recently 
approved.\126\
---------------------------------------------------------------------------

    \123\ See, e.g., E. Shore of Va. Broadband Auth. at 2 (Nov. 30, 
2009).
    \124\ See, e.g., Penasco Valley Tel. Coop. at 5.
    \125\ See, e.g., TransWorld Network at 3 (Nov. 24, 2009).
    \126\ See, e.g., Mid-Rivers Commc'ns at 6.
---------------------------------------------------------------------------

    NTIA is in accord with the views of commenters who point out 
that the agencies are statutorily prohibited from funding

[[Page 3817]]

projects in the same area and that such duplicative funding would be 
wasteful and inconsistent with the objectives of the Recovery Act. 
Thus, as in the first funding round, RUS and NTIA will not fund 
infrastructure projects in the same service area. The agencies will 
coordinate to identify potential service area overlaps and will 
resolve such conflicts in the manner that best satisfies the 
statutory objectives of both programs.

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 invited public comment on whether the 
agencies should permit greater access, consistent with applicable 
Federal laws and regulations, to certain applicant information by 
other applicants, policymakers, and the public, including State and 
tribal governments.\127\ In the RFI, the agencies tentatively 
concluded that the application's Executive Summary should be made 
publicly available in this round of funding.\128\
---------------------------------------------------------------------------

    \127\ See 74 FR at 58942.
    \128\ Id.
---------------------------------------------------------------------------

    The overwhelming majority of commenters support the RFI's 
tentative recommendation to make the Executive Summary available to 
the public, but differ as to how much applicant information should 
be made public.\129\ The majority of these commenters recommend that 
applicants be permitted to designate trade secrets, financial 
projections, and other proprietary information as confidential.\130\ 
The majority of commenters caution, however, that should 
confidentiality protections not be provided, applicants would hold 
back critical information needed for an adequate review of the 
applications.\131\ A minority of commenters support making the 
entire application public and available online without 
confidentiality protections.\132\ Some States propose a compromise 
position whereby NTIA would publish expanded Executive Summaries 
disclosing pertinent facts (targeted area, type of technology used, 
project cost and revenue projections) and withhold only proprietary 
or patented technology from public disclosure.\133\
---------------------------------------------------------------------------

    \129\ See, e.g., Stratum Broadband at 8 (Nov. 14, 2009).
    \130\ See, e.g., Fairpoint Commc'ns at 5 (Nov. 30, 2009).
    \131\ See, e.g., Nat'l Rural Telecomms. Coop. and DigitalBridge 
Commc'ns Corp. at 8.
    \132\ See, e.g., New Am. Found. at 8.
    \133\ See, e.g., Commonwealth of Pa. at 5.
---------------------------------------------------------------------------

    NTIA agrees with commenters who advocate more transparency 
throughout the application and evaluation processes. During this 
funding round, NTIA will post an announcement identifying each 
infrastructure application received, along with a list of the Census 
block groups or tracts that each application proposes to serve 
through its project, in addition to the information it is required 
to publicly disclose pursuant to the Recovery Act.
    States advocate full access to entire applications, including 
mapping data, for purposes of State consultation.\134\ Similarly, 
tribal commenters recommend that, due to historic preservation and 
tribal sovereignty concerns, NTIA and RUS timely alert relevant 
tribes about applications that propose to serve their tribal 
lands.\135\ In addition, several commenters contend that 
transparency should extend to the public notice comment and State 
consultation processes by making comments from existing service 
providers and State and tribal entities public.\136\
---------------------------------------------------------------------------

    \134\ See, e.g., Nat'l Ass'n of State Chief Info. Officers at 2 
(Nov. 30, 2009).
    \135\ See, e.g., Forest County Potawatomi at 2 (Nov. 30, 2009).
    \136\ See, e.g., Motorola at 6 (Nov. 30, 2009); Rural Broadband 
Now! at 8.
---------------------------------------------------------------------------

    NTIA is sensitive to the needs of States and tribes when 
reviewing applications that propose to serve areas within their 
jurisdictions. NTIA will share with each relevant State and tribe 
applicants' data that are available on the publicly searchable 
database. Additional information may be requested directly from 
applicants by each State or tribe. In addition, NTIA will make the 
comments of the States and tribes available on the publicly 
searchable database, with the exception of any confidential 
information that the comments may contain. NTIA also will make 
certain information submitted by existing broadband service 
providers publicly available as part of the announcement process for 
applicants' proposed funded service areas.

Funding Priorities and Comprehensive Communities

    During the initial round of funding, RUS and NTIA allocated a 
total of $4 billion in funding for various project categories, 
including Last Mile infrastructure, Middle Mile infrastructure, 
Public Computer Center, and Sustainable Broadband Adoption projects. 
In response to numerous suggestions concerning how the NOFA could be 
modified to ensure that Recovery Act funds make the greatest 
possible impact, the agencies' RFI invited commenters to provide 
quantitative estimates of the projected benefits of adopting a more 
targeted funding approach during this round of funding.\137\ NTIA 
and RUS also expressly requested comment on whether the agencies 
should focus on or limit funding to projects that will deliver 
Middle Mile infrastructure facilities into a group of communities 
and connect key anchor institutions within those communities.\138\
---------------------------------------------------------------------------

    \137\ See 74 FR at 58942.
    \138\ Id.
---------------------------------------------------------------------------

    Approximately one-third of commenters who address the funding 
priorities section of the RFI recommend targeting community anchor 
institutions for special consideration in this round of 
funding.\139\ These commenters suggest that certain institutions, 
such as public safety agencies,\140\ educational institutions,\141\ 
and health service providers,\142\ should receive greater funding 
priority in order to reflect their impact on economic development 
and their greater need for or use of broadband services. Many 
commenters advocating more targeted funding for community anchor 
institutions suggest that they should not need to meet the unserved/
underserved criteria in order to qualify for funding.\143\ One 
commenter suggests an entirely separate application track for 
community anchor institutions.\144\ Supporters of this targeted 
funding approach agree that any definition of community anchor 
institutions should include K-12 schools,\145\ libraries,\146\ 
higher education facilities,\147\ and healthcare facilities.\148\ In 
addition to these entities, which were explicitly noted as 
priorities in the NOFA for the initial round of funding, some 
commenters suggest that NTIA use a more expansive definition of 
community anchor institution that encompasses public access media, 
performance spaces, and other community organizations.\149\ 
Commenters also suggest focusing increased funding to small 
businesses \150\ and public housing.\151\
---------------------------------------------------------------------------

    \139\ See, e.g., The Bill & Melinda Gates Found. at 1-2 (Nov. 
30, 2009); Media Alliance at 2 (Nov. 25, 2009); Pub. Broad. Serv. at 
1-5 (Nov. 30, 2009); Mass. Executive Office of Hous. and Econ. Dev. 
at 6; Mid Am. Reg'l Council at 2; Corp. for Educ. Initiatives in 
Cal. at 1 (Nov. 28, 2009); Am. Library Ass'n at 3.
    \140\ See, e.g., Motorola at 8-9; Mass. Executive Office of 
Hous. and Econ. Dev. at 6-7.
    \141\ See, e.g., Nat'l Educ. Broadband Serv. Ass'n at 11; Corp. 
for Educ. Initiatives in Cal. at 1.
    \142\ See, e.g., Mayo Clinic at 3 (Nov. 24, 2009).
    \143\ See, e.g., City of N.Y. at 2, City of Philadelphia at 4-6 
(Nov. 30, 2009); Sch., Health, & Libraries Broadband Coal. at 18.
    \144\ See, e.g., The Bill & Melinda Gates Found. at 1.
    \145\ See, e.g., Hot Springs Greater Learning Found. at 3 (Nov. 
30, 2009); The Bill & Melinda Gates Found. at 1; Corp. for Educ. 
Initiatives in Cal. at 1.
    \146\ See, e.g., The Bill & Melinda Gates Found. at 1; Corp. for 
Educ. Initiatives in Cal. at 1; Am. Library Ass'n at 3; Nat'l Educ. 
Broadband Serv. Ass'n at 5-6.
    \147\ See, e.g., Hot Springs Greater Learning Found. at 2; The 
Bill & Melinda Gates Found. at 1; Nat'l Rural Telecomms. Coop. & 
DigitalBridge Commc'ns Corp. at 9.
    \148\ See, e.g., Mayo Clinic at 2; Univ. of Cal. Davis Med. Sys. 
at 2 (Nov. 30, 2009); Wash. State Law and Justice Org. at 3.
    \149\ See, e.g., Media Alliance at 2; Pub. Broad. Serv. at 1-5; 
Corp. for Educ. Initiatives in Cal. at 1.
    \150\ See, e.g., Towerstream at 3-4 (Nov. 30, 2009); Asian Am. 
Justice Ctr., League of United Latin Am. Citizens, Minority Media & 
Telecomms. Council, Nat'l Urban League & One Econ. Corp. at 5 (Nov. 
30, 2009).
    \151\ See, e.g., One Econ. Corp. at 4.
---------------------------------------------------------------------------

    A handful of organizations disagree that any one application 
type should be explicitly targeted for funding, even if it proposes 
to connect community anchor institutions or serve a ``vulnerable'' 
population.\152\ In particular, these dissenting commenters advance 
the opinion that while community anchor institutions should be 
eligible for funding, they are not necessarily any more meritorious 
than other eligible entities.\153\
---------------------------------------------------------------------------

    \152\ See, e.g., Towerstream at 2; Open Range Commc'ns at 6; 
Utopian Wireless at 7.
    \153\ See, e.g., Towerstream at 2; Telecom Transp. Mgmt. at 7; 
Internet2 at 24-25.
---------------------------------------------------------------------------

    NTIA agrees with commenters that stress the importance of 
connecting broadband to community anchor institutions. Schools,

[[Page 3818]]

libraries, colleges and universities, medical and healthcare 
providers, public safety entities, and other community support 
organizations increasingly rely on Internet connectivity to serve 
their constituencies and their communities. Expanding broadband 
capabilities for community anchor institutions will result in 
substantial benefits for the entire community, delivering improved 
education, healthcare, and economic development. Broadband 
connections to these facilities will not only enhance their services 
and effectiveness, but can also provide potential points of 
interconnection for Last Mile service directly to homes and 
businesses. For these reasons, NTIA focuses funding in this NOFA 
towards projects that connect community anchor institutions.
    To leverage connections to community anchor institutions, a 
number of commenters explicitly support the prioritization of 
Comprehensive Communities.\154\ Many supporters of a Middle Mile 
comprehensive community priority in this round of funding suggest 
that Middle Mile funding should be contingent upon a commitment from 
a Last Mile provider.\155\ A smaller handful of commenters note that 
cooperation among Middle Mile and Last Mile providers should be 
encouraged but not required.\156\ In opposition, some commenters 
argue that it may be too onerous for community anchor institutions 
such as schools and hospitals to obtain a Last Mile commitment.\157\
---------------------------------------------------------------------------

    \154\ See, e.g., Sch., Health, & Libraries Coal. at 15; Am. 
Library Ass'n at 8; Corp. for Educ. Initiatives in Cal. at 1.
    \155\ See, e.g., S. C. Broadband Coal. at 3 (Nov. 30, 2009); 
Mayo Clinic at 3; Univ. of Cal. Davis Med. Sys. at 2.
    \156\ See, e.g., The Bill & Melinda Gates Found. at 5; Mass. 
Executive Office of Hous. and Econ. Dev. at 7.
    \157\ See, e.g., Sch., Health, & Libraries Broadband Coal. at 
17; Am. Library Ass'n at 8.
---------------------------------------------------------------------------

    The minority of commenters who voice skepticism towards a 
Comprehensive Community approach to funding worry about the threat a 
Middle Mile priority would pose to the funding of Last Mile 
projects.\158\ In addition to the relationship between Middle Mile 
and Last Mile projects, many commenters oppose the creation of set-
asides for one type of application.\159\
---------------------------------------------------------------------------

    \158\ See, e.g., Nat'l Telecomms. Coop. Ass'n at 4 (Nov. 30, 
2009); Mont. Indep. Telecomms. Sys. at 4; Nat'l Pub. Broadband at 1 
(Nov. 25, 2009); City of N.Y. at 4-5.
    \159\ See, e.g., Commonwealth of Pa. at 9; RVW, Inc at 2.
---------------------------------------------------------------------------

    NTIA agrees with commenters that support targeting the funding 
available in this round towards comprehensive communities with an 
emphasis on projects that emphasize Middle Mile broadband 
capabilities. Preliminary findings by the FCC's National Broadband 
Plan Task Force indicate that broadband service in unserved and 
underserved areas of the United States is limited due to 
insufficient capacity and to significantly higher costs of deploying 
Middle Mile services in some areas.\160\ NTIA finds that the cost of 
Middle Mile service, particularly in unserved and underserved areas, 
stifles broadband expansion for those that need it most. 
Insufficient Middle Mile broadband service not only limits the 
availability and affordability of end-user broadband connectivity 
for consumers and businesses, but it also diminishes the 
effectiveness of community anchor institutions in fulfilling their 
missions.\161\
---------------------------------------------------------------------------

    \160\ FCC Identifies Critical Gaps in Path to Future Universal 
Broadband, News Release (Nov. 18, 2009).
    \161\ See, e.g., The Bill & Melinda Gates Found. at 6-7 (public 
libraries); May Clinic at 3 (telemedicine); Motorola at 8-9 (public 
safety).
---------------------------------------------------------------------------

    For these reasons, NTIA seeks to focus on these types of 
projects by adopting a ``comprehensive communities'' approach to 
awarding BTOP infrastructure grants, which prioritizes Middle Mile 
projects integrated with community anchor institutions, including 
community colleges, or Last Mile service providers as a means of 
maximizing the leverage of taxpayer investments.
    Commenters put forth a number of key criteria that NTIA should 
consider in its evaluation of Comprehensive Community projects, 
including cost effectiveness,\162\ technology approaches,\163\ the 
size of the matching funds,\164\ and support from community anchor 
institutions.\165\ Most commenters suggest evaluating projects based 
on the extent to which the applicant proposes to connect 
institutions that serve a vulnerable population group,\166\ such as 
a historically black university or an institution serving primarily 
to Hispanic groups.\167\ A smaller number of commenters suggest that 
NTIA evaluate the number of community anchor institutions connected 
by the project.\168\ The proposal to use sustainability and public-
private partnerships as potential criteria for evaluating 
Comprehensive Communities did not receive much support.\169\
---------------------------------------------------------------------------

    \162\ See, e.g., NTCH-Cleartalk at 1; Spacenet, Inc. at 6 (Nov. 
30, 2009); Rural Broadband Now! at 6-7.
    \163\ See, e.g., NATOA at 12 (Nov. 30, 2009).
    \164\ See, e.g., Inst. for Local Self-Reliance (ILSR) at 3 (Nov. 
30, 2009).
    \165\ See, e.g., Forest County Potawatomi at 3.
    \166\ See, e.g., CBN Connect at 2; City of San Francisco at 3; 
The Bill & Melinda Gates Found. at 2.
    \167\ See, e.g., Asian Am. Justice Ctr., League of United Latin 
Am. Citizens, Minority Media and Telecomms. Council, Nat'l Urban 
League, and One Econ. Group at 5-6.
    \168\ See, e.g., City of San Francisco at 3; The Bill & Melinda 
Gates Found. at 2; Corp. for Educ. Initiatives in Cal. at 1.
    \169\ But see, e.g., Stratum Broadband at 12.
---------------------------------------------------------------------------

    NTIA agrees with many of the criteria suggested by commenters to 
evaluate Comprehensive Community Infrastructure projects. Evaluation 
criteria in this funding round will prioritize applications that 
include a Middle Mile component and demonstrate commitments to serve 
community anchor institutions, including community colleges, and 
incorporate public-private partnerships and public safety entities, 
along with the other project priorities and additional factors that 
are set forth in Section II. of this NOFA.

Program Definitions--``Unserved'' and ``Underserved''

    More than seventy commenters offer suggestions for clarifying 
the definitions of ``unserved'' and ``underserved'' used in the 
First NOFA. Many of these commenters contend that the current 
definitions are too restrictive and recommend that NTIA craft a 
broader standard.\170\ A common concern among these commenters is 
that the current broadband penetration thresholds included in the 
definitions exclude many worthy projects located in urban 
areas.\171\
---------------------------------------------------------------------------

    \170\ See, e.g., City of N.Y. at 7; New Am. Found. at 20-21; 
Telecomms. Indus. Ass'n at 8 (Nov. 30, 2009); San Jose Hispanic 
Chamber of Commerce at 2 (Nov. 30, 2009); City of Chicago at 7; 
Broadband Satellite Commenters at 15 (Nov. 30, 2009); Nat'l Rural 
Telecomms. Coop. & DigitalBridge Commc'ns Corp. at 11.
    \171\ See, generally, E. Or. Telecom at 2; N.Y. State Ass'n of 
Counties at 2 (Nov. 30, 2009); City of N.Y. at 2.
---------------------------------------------------------------------------

    A substantial number of commenters advocate applying the 
definitions of ``unserved'' and ``underserved'' differently to 
different types of applicants.\172\ Several commenters request that 
community anchor institutions \173\ and projects that propose to 
serve vulnerable communities,\174\ no matter where they are located, 
be exempt from having to meet the unserved or underserved 
definitions. A few commenters suggest that NTIA use different 
definitions depending on whether an applicant applies as an 
Infrastructure, PCC, or SBA project.\175\
---------------------------------------------------------------------------

    \172\ See, e.g., Towerstream at 3-4; City of N.Y. at 2; San Jose 
Hispanic Chamber of Commerce at 2; FiberTower Corp. at 8-9.
    \173\ See, e.g., New Am. Found. at 10; Telecomms. Indus. Ass'n 
at 14; Am. Library Ass'n at 15.
    \174\ See, e.g., San Jose Hispanic Chamber of Commerce at 3; 
Digital Impact Group at 2; Trace Ctr., Univ. of Wis. at 1-3; 
Broadband for the Deaf & Hard of Hearing at 4.
    \175\ See, e.g., Digital Impact Group at 2; State of Mich. at 
11; City of Phoenix at 3.
---------------------------------------------------------------------------

    Several commenters recommend that the socioeconomic status of an 
area be considered in determining whether that area is unserved or 
underserved. Specifically, several commenters express concern with 
using Census blocks to define an unserved or underserved area in the 
previous round and recommend that NTIA require applicants to use 
socioeconomic and demographic data instead to identify unserved and 
underserved areas.\176\ Many commenters also suggest that the 
underserved and unserved definitions consider the effects of poverty 
on adoption, especially as it relates to the affordability of 
broadband in an area, and evaluate projects that propose to address 
these adoption barriers more positively.\177\
---------------------------------------------------------------------------

    \176\ See, e.g., Montgomery County, Md. at 2-3; NATOA at 6-7; 
Mid Am. Reg'l Council at 1.
    \177\ See, e.g., Cricket Commc'ns at 7-8; Cmtys. Connect Network 
at 1-2; City of Philadelphia at 6-7.
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    Finally, several commenters suggest that NTIA use actual 
guaranteed speeds as opposed to advertised speeds to determine 
whether an area is considered underserved.\178\ Commenters are 
divided

[[Page 3819]]

whether NTIA should eliminate the provision that defined a service 
area as underserved or unserved if certain broadband speeds were 
unavailable, with some commenters recommending that speed be 
eliminated as a criterion,\179\ but many more recommending that 
available speeds remain a focus for defining unserved and 
underserved areas.\180\
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    \178\ See, e.g., Flow Mobile at 12; City of Seattle at 9-11; 
Inst. for Local Self-Reliance at 4; City of Portland, Or. at 2; City 
of Houston at 3; Wireless Commc'ns Ass'n Int'l at 5-8; NATOA at 10-
11; City of Tacoma at 3; E. Shore of Va. Broadband Auth. at 3.
    \179\ See, e.g., Commonwealth of Pa. at 13; Wireless Internet 
Serv. Providers at 13.
    \180\ See, e.g., Flow Mobile at 12; City of Seattle at 6-7; Am. 
Cable Ass'n at 13-14; E. Shore of Va. Broadband Auth. at 3; Alcatel 
Lucent at 2-3.
---------------------------------------------------------------------------

    NTIA disagrees with commenters in a variety of respects. The 
First NOFA provided very specific definitions of what constitutes an 
unserved and underserved area for BTOP purposes. In NTIA's review of 
applications submitted by private companies, community anchor 
institutions, and other stakeholders in the first funding round, 
NTIA does not believe that its definitions proved to be overly 
restrictive or hindered applicants from applying. Additionally, NTIA 
finds that, for purposes of consistency between the two rounds of 
funding as well as between BTOP and the Broadband Mapping Program, 
the definitions of unserved and underserved should remain largely 
unchanged. NTIA has, however, removed the requirement that 
infrastructure projects connecting community anchor institutions, 
including community colleges, must be located in unserved or 
underserved areas. The Comprehensive Community Infrastructure 
project category will consider whether a proposed funded service 
area is unserved or underserved as an additional factor giving an 
application more priority in scoring. For all of these reasons, NTIA 
decides against substantially revising its definitions of unserved 
and underserved.

Announcement of Applicants' Proposed Funded Service Areas

    The First NOFA allowed existing broadband service providers an 
opportunity to comment on an applicant's assertions that its 
proposed funded service areas are unserved or underserved.\181\ 
During the initial round of funding, some stakeholders suggested 
that this rule may reduce incentives for applicants to participate 
in BIP and BTOP 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. The RFI sought comment on whether alternative 
verification methods could be established that would be fairer to 
both applicants and challengers, what type of information should be 
collected from the entity questioning the service area, and what 
information should be subject to public disclosure.\182\
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    \181\ 74 FR at 33122.
    \182\ See 74 FR at 58943-44.
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    Numerous commenters request a more transparent and defined 
process in which the agencies describe the procedures and criteria 
used to determine whether an applicant's proposed funded service 
area is unserved or underserved and make data submitted during the 
announcement process available to the public.\183\ Further, to 
assuage concern that an application may be disqualified from funding 
based on information submitted during the announcement process, many 
respondents suggest that applicants be provided an opportunity to 
review and rebut the comments that existing broadband service 
providers submit.\184\ In addition, many commenters suggest that 
data should be collected from a number of sources before NTIA 
renders a final determination as to whether broadband is already 
available, such as FCC Form 477 data.\185\
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    \183\ See, e.g., Flow Mobile at 14; Spacenet at 7; Mass. 
Executive Office of Hous. and Econ. Dev. at 8.
    \184\ See, e.g., City of Chicago at 3; CONXX at 15; Rural 
Broadband Now! at 8; NATOA at 17.
    \185\ See, e.g., Am. Cable Ass'n at 14-16; CONXX at 15; U.S. 
Telecom at 26; Univ. of Ark. Med. Serv. at 5; Stratum Broadband at 
21-22.
---------------------------------------------------------------------------

    Commenters also provide suggestions as to what type of 
information should be gathered from existing broadband service 
providers seeking to submit comments. Commenters overwhelmingly urge 
NTIA to require that broadband service providers demonstrate that 
available broadband claims are based on actual speed \186\ and 
coverage,\187\ which is independently verifiable and not simply as 
advertised.\188\ Further, a majority of commenters request that 
incumbents provide detail at the Census block level corresponding 
with the application.\189\ Some respondents propose that NTIA 
require existing broadband service providers who comment on an 
application's proposed funded service area to supply the names and 
addresses of current subscribers within the designated area \190\ or 
prove coverage by posting coverage availability on their Web site at 
all times.\191\
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    \186\ See, e.g., New Am. Found. at 23; Inst. for Local Self-
Reliance at 5; Merit Network at 8-9; Am. Fiber Sys. at 3; City of 
Grover Beach at 12.
    \187\ See, e.g., Stratum Broadband at 22; NTCH-Cleartalk at 1; 
Am. Fiber Sys. at 3; City of Grover Beach at 12; CONXX at 15.
    \188\ See, e.g., New Am. Found. at 23; Flow Mobile at 14; City 
of Grover Beach at 12.
    \189\ See, e.g., Merit Network at 8-9; Open Range Commc'ns at 9; 
Stratum Broadband at 22; Commonwealth of Pa. at 13; Fairpoint 
Commc'ns.
    \190\ See, e.g., Loudoun County, Va., OpenBand Multimedia, LLC & 
Roadstar Internet, Inc at 7; CONXX at 15.
    \191\ See, e.g., Found. Telecomms. at 1.
---------------------------------------------------------------------------

    For this round of funding, NTIA will post an announcement 
identifying each CCI application it has received, along with a list 
of the Census block groups or tracts that each infrastructure 
application has proposed to serve through its project at http://www.broadbandusa.gov for a 15-day period. The announcement will 
provide existing broadband service providers with an opportunity to 
voluntarily submit to NTIA information about the broadband services 
that they currently offer in their respective service territories by 
Census block group or tract. If an existing broadband service 
provider submits a response outside the 15-day period, the 
information may not be considered by NTIA in its evaluation of an 
applicant's Last Mile or Middle Mile service area(s) as unserved or 
underserved, as applicable.
    NTIA will consider such comments provided they include the 
information set forth in Section V.D.3 of the NOFA, some of which 
will be made public.
    NTIA adopts this method of evaluating the unserved or 
underserved status of applicants' proposed funded service area as a 
means to improve the analysis and minimize the burden on applicants 
and commenters. NTIA also departs from the evaluation process that 
RUS will use in that it will no longer use the RUS mapping tool to 
have applicants and commenters draw service area maps or require 
existing broadband service providers to submit comments on each 
proposed funded service area specified in an application. As a 
result of these process enhancements, NTIA believes it can expedite 
the time period in which existing service providers have to submit 
their comments from 30 days to 15 days. This expedited schedule will 
allow NTIA to begin its evaluation of the unserved or underserved 
status of applications that enter due diligence much more quickly 
than in the previous round of funding.

Interconnection and Nondiscrimination Requirements

    In the RFI, NTIA and RUS invited public comment on whether the 
interconnection and nondiscrimination requirements for 
infrastructure applicants in the initial round of funding should be 
changed.\192\ Commenters generally suggest that NTIA maintain the 
same rules as those of the First NOFA with no modification to their 
scope or application.\193\
---------------------------------------------------------------------------

    \192\ 74 FR at 58944.
    \193\ See, e.g., Tex. Statewide Tel. Coop. at 12; New Am. Found. 
at 23; Vantage Point Solutions at 10; Eng'g Ass'n at 4; Harris Corp. 
at iv; CONXX at 16; City of San Francisco at 1; Am. Fiber Sys. at 4; 
E. Shore of Va. Broadband Auth. at 5; Mid-Rivers Commc'ns at 10; 
Commonwealth of Pa. at 14.
---------------------------------------------------------------------------

    However, several commenters suggest modifying the scope and 
application of the nondiscrimination and interconnection 
requirements.\194\ Commenters suggest minor adjustments that could 
be made to these requirements in order to advance certain market 
efficiencies,\195\ including requiring grantees to provide fully 
functional and comprehensive operations support systems and 
associated Application Programming Interfaces for their wholesale 
services \196\ and for NTIA to rephrase the network management and 
managed service exceptions in order to encourage companies to 
provide shared managed services.\197\ Some commenters also request 
that certain applicants such as tribes \198\ and municipalities 
\199\ be exempt from the NOFA's nondiscrimination and

[[Page 3820]]

interconnection requirements.\200\ In opposition, some commenters 
request that the requirements be applied to every applicant, 
regardless of the nature of the entity.\201\
---------------------------------------------------------------------------

    \194\ See, e.g., Earthlink and New Edge Network at 2; Stratum 
Broadband at 23-24.
    \195\ Id.
    \196\ See, e.g., Earthlink and New Edge Network at 2.
    \197\ See, e.g., Stratum Broadband at 23-24.
    \198\ See, e.g., United Tribes Technical Coll. at 1.
    \199\ See, e.g., City of Phoenix at 3.
    \200\ See, e.g., Merit Networks at 9 (suggesting a balancing 
test when applying the nondiscrimination and interconnection 
requirements).
    \201\ See, e.g., Org. for the Promotion & Advancement of Small 
Telecomms. Companies at 7-8; Indep. Tel. and Telecomms. Alliance at 
10.
---------------------------------------------------------------------------

    Commenters express concern that NTIA's requirements would not 
mirror the rules that are ultimately adopted in the Federal 
Communications Commission's (FCC) ongoing rulemaking proceeding 
regarding a Free and Open Internet.\202\ These commenters argue that 
if the requirements applicable to BTOP applicants are inconsistent 
with those faced by other service providers, then these additional 
nondiscrimination obligations will prove burdensome or duplicative 
for broadband service providers receiving grant funds.\203\ 
Commenters suggest that NTIA declare a sunset date for these 
requirements either when the FCC finalizes its network neutrality 
rules or at another reasonably foreseeable date.\204\ Commenters 
also recommend that NTIA declare that compliance with the FCC rules 
would be sufficient to meet the requirements of BTOP.\205\
---------------------------------------------------------------------------

    \202\ See, e.g., ADTRAN at 4-5; Telecomms. Indus. Ass'n at 18; 
Indep. Tel. and Telecomms. Alliance at 10; Open Range Commc'ns at 
10-11; U.S. Telecom at 32.
    \203\ See, e.g., ADTRAN at 2; Telecomms. Indus. Ass'n at 18; 
U.S. Telecom at 31-33.
    \204\ See, e.g., Indep. Tel. and Telecomms. Alliance at 10; Open 
Range Commc'ns at 10-11; ADTRAN at 4-5.
    \205\ See, e.g., ADTRAN at 4-5.
---------------------------------------------------------------------------

    A few commenters oppose the First NOFA's nondiscrimination and 
interconnection requirements altogether.\206\ These commenters argue 
that the scope of these requirements chilled participation in the 
Program during the initial round of funding \207\ and that the 
requirements conflicted with a private company's ability to manage 
its own network.\208\ Commenters also argue that the current 
approach to the requirements would pose an oversight problem for 
NTIA and RUS and recommend that compliance be left up to the grant 
recipients.\209\
---------------------------------------------------------------------------

    \206\ See, e.g., AT&T at 17-18; State of S.D. at 1; AzulStar at 
4.
    \207\ See, e.g., AT&T at 17-18.
    \208\ See, e.g., State of S.D. at 1; AzulStar at 4.
    \209\ See, e.g., AT&T at 18.
---------------------------------------------------------------------------

    A few commenters also recommend that NTIA clarify its 
interconnection requirements in order to minimize cost and 
controversy.\210\ These commenters are especially concerned that the 
interconnection and nondiscrimination rules during the initial round 
of funding were unclear as applied to contractors or 
subcontractors.\211\
---------------------------------------------------------------------------

    \210\ See, e.g., Stratum Broadband at 24; Alaska Commc'ns Sys. 
at 7-8; AT&T at 18-19; U.S. Telecom at 33-34; CONXX at 16.
    \211\ Id.
---------------------------------------------------------------------------

    NTIA agrees with commenters that support maintaining the 
consistency of the interconnection and nondiscrimination 
requirements across the two rounds of funding. Leaving the 
requirements unchanged from the initial round of funding will help 
to facilitate the administration of the grants awarded during the 
first and second rounds and avoid imposing differing 
nondiscrimination and interconnection standards on recipients. 
Accordingly, NTIA has decided against making any significant 
revisions to this section. Any changes made to this section from the 
First NOFA are intended only to clarify and not change the 
applicants' obligations.

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. 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.\212\ Some stakeholders have suggested that this ``ten-year 
holding rule'' is overly restrictive and is a barrier to 
participation in BIP and BTOP.\213\ The agencies invited public 
comment on whether and how this section should 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 excessive profit from the sale of award-funded 
assets.\214\
---------------------------------------------------------------------------

    \212\ See 74 FR at 58944.
    \213\ See, e.g., KeyOn Commc'ns at 3; Commc'ns Finance Ass'n at 
1.
    \214\ See 74 FR at 58944.
---------------------------------------------------------------------------

    The clear majority of forty-seven parties who filed comments on 
the NOFA's conditions on the post-award sale or lease of project 
assets support a relaxation of these conditions.\215\ Only a few 
commenters support retention of the rules.\216\ Most commenters 
agree that the prohibitions on the sale or lease of project 
facilities are unreasonably broad because they fail to provide 
flexibility for the government to consent to a reasonable lease or 
sale during the first ten years. One commenter voices a concern 
shared by many that the conditions restricting post-award sales or 
leases may inhibit obtaining funding for the project, explaining 
that ``the 10-year prohibition on the sale of the funded assets also 
seems to cause a `chilling effect' in terms of capital raising by 
applicants and may have caused many potential broadband providers to 
avoid BIP/BTOP entirely.'' \217\
---------------------------------------------------------------------------

    \215\ See, e.g., Cricket Commc'ns at 12; Stratum Broadband at 
12; Flow Mobile at 15.
    \216\ Eng'g Ass'n, Inc. at 4; E. Shore of Va. Broadband Auth. at 
5; Canby Telecom at 1; Mid-Rivers Commc'ns at 10.
    \217\ See, e.g., KeyOn Commc'ns at 3; E. Shore of Va. Broadband 
Auth. at 5; Native Broadband Satellite at 8; Alaska Commc'ns Sys. at 
8; Cricket Commc'ns at 12; Cal. Broadband Coop. at 5.
---------------------------------------------------------------------------

    Commenters supporting greater flexibility regarding the sale of 
assets recommend the following revisions: The second NOFA should 
allow the government to approve the sale or lease of project assets 
on a case-by-case basis; \218\ the agencies should remove the 10-
year limit and focus on unjust enrichment; \219\ clarify that the 
project assets mean only those assets which are purchased directly 
from grant funds awarded and not * * * equipment or services 
purchased * * * with ``matching funds;'' \220\ relax rules so that 
the agencies may approve sales, ``as long as the successor agrees to 
the obligations of the program;'' \221\ allow for accelerated 
depreciation of assets; \222\ restrictions should not apply to IRUs 
or leases to research and education networks; \223\ and modify the 
policy to accommodate the sale or lease to accommodate the normal 
five-year replacement cycle of broadband equipment.\224\
---------------------------------------------------------------------------

    \218\ See, e.g., Rural Broadband Now at 9.
    \219\ See, e.g., U.S. Telecom at 37-38.
    \220\ See, e.g., Dixie Tech. Funding Agency at 15.
    \221\ See, e.g., Monte R Lee & Co. at 8.
    \222\ See, e.g., Senior Broadband/Internet Adoption 
Collaborative at 10.
    \223\ See, e.g., Internet2 at 26-27.
    \224\ See, e.g., TransWorld Network at 5.
---------------------------------------------------------------------------

    NTIA agrees with the majority of commenters proposing to relax 
restrictions on the post-award sale or lease of project assets and 
revises this section accordingly. As a result, awardees may petition 
for a waiver authorizing the sale or lease of assets at any time 
during the life of the award-funded facilities and shall include 
supporting documentation and justification regarding why the 
petition should be granted.

    Dated: January 15, 2010.
Lawrence E. Strickling,
Assistant Secretary for Communications and Information.

[FR Doc. 2010-1097 Filed 1-19-10; 11:15 am]
BILLING CODE 3510-60-P