Broadband Funding Options: Show Me the Money!

The federal government’s recent largesse has made broadband infrastructure development a focus of discussion in many communities. The pleasing number of zeroes contained in the American Rescue Plan Act (ARPA) and more recent infrastructure bill may, however, distract from other available sources of broadband development funding. There are several existing state and federal loan and grant programs that may ultimately be better suited to certain projects or needs. It is critical for anyone exploring broadband expansion or improvements to understand the full spectrum of funding opportunities now available and whether you meet the qualifications.

Maine now has two primary grant-making agencies—the ConnectMaine Authority (ConnectME) and the Maine Connectivity Authority (MCA). ConnectME offers two types of grants to counties, municipalities, and community groups seeking to invest in broadband expansion. Community Broadband Planning Grants are made available to help communities plan for broadband service expansions. Those seeking a Planning Grant must first complete ConnectME’s Startup Grant program, which provides a small infusion of funds and support services to help the recipient build the community and legislative support necessary for a successful broadband project. ConnectME’s Infrastructure Grants are made to support investment in physical infrastructure through provider expansion or community-driven broadband projects. Infrastructure Grants are typically made to service providers that partner with community groups or municipalities to expand or improve broadband service within a given area. In addition to its grants, which range in size depending on the scope and nature of the proposed project, ConnectME provides a level of experience and expertise that makes it a valuable initial or supplemental funding source for anyone exploring local or regional broadband development projects.

The recently established MCA is charged with deploying $150 million Maine received through the American Rescue Plan Act (ARPA). The MCA was created to ensure that all Maine people have access to secure, affordable, and reliable broadband access. The Maine Legislature has given the MCA expansive powers to improve broadband infrastructure, to provide funding directly or through other State agencies to others for the same, and to operate its own broadband networks. The MCA is still developing its rules and funding process and will likely not begin distributing funds until mid-2022.It will surely, however, serve as an important source of funding for local and regional broadband initiatives moving forward and we are paying close attention to MCA’s activities.

In addition to the well-publicized ARPA funds made available to counties and municipalities, the federal government has reinvigorated several existing programs that offer loans and grants for broadband development projects. These include the U.S. Department of Agriculture’s Rural Utility Service which administers the Community Connect Program (CCP) and Rural E-Connectivity Program (ReConnect). The CCP provides grants for broadband expansion within eligible rural communities. The RUS has recently reserved and solicited applications for 10% of its CCP funding, approximately $60 million, for multi-jurisdictional projects, while ReConnect has received an additional $100 million to provide loans to local governments within eligible service areas for the construction or improvement of broadband infrastructure and facilities. Though both programs are limited to certain rural communities, the CCP and ReConnect offer significantly more funding than ConnectME grants. As a result, the CCP and Reconnect programs have been important resources for larger broadband infrastructure developments, including those in Roque Bluffs, Cranberry Isles, Arrowsic, and Monhegan Island. And, well, as they say, with great financing comes onerous compliance. CCP and ReConnect recipients must be prepared to perform significantly more compliance and reporting work than they would under Maine programs.

As more funding becomes available for broadband infrastructure development, knowing which funding sources are appropriate and beneficial to any given project, and available to the applicant, will be more important than ever.

FOAA Changes Now in Effect

Several changes to Maine’s Freedom of Access Act quietly went into effect on October 18, 2021. Passed in the waning days of the Legislature’s special session, L.D. 1345 and 1346 expanded mandatory FOAA training requirement for municipal officials, modified the Right to Know Advisory Committee membership and responsibilities, and limited the fees that officials and agencies may charge for compiling FOAA responses.

Upcoming FOAA trainings will need added seating. Under L.D. 1345, an expanded list of municipal officers and officials must complete a mandatory FOAA training within 120 days of assuming their duties. The newly added officials include municipal clerks, managers, administrators, code enforcement officers, and their deputies; planning board members; and superintendents, assistant superintendents, and school board members of school administrative units. As a result, these officials must complete the training and file a certificate of completion as required under Title 1, section 412. The law isn’t clear about how it pertains to sitting officials; to be safe, we recommend that all officials receive this training within 120 days from the law’s effective date.

There are also changes to the FOAA’s permitted staff time and per-page copy fees. L.D. 1346 increased the maximum hourly charge for staff time spent compiling responsive records from $15 to $25. However, it also increased the “no charge” period for staff time from one hour to two hours. In addition, L.D. 1345 limited the per-page copy fee for black and white copies of records to $0.10 and entirely prohibits per-page copy fees for records provided electronically (note, we think it is defensible to charge where printing is required to fulfill a request, even if the ultimate production is sent electronically). While L.D. 1346 explicitly authorized agencies to retain any fees charged under the FOAA, these other changes are likely to reduce the total amount of fees municipalities and agencies receive for FOAA responses. For example, due to the increased “no charge” period for staff time, responses requiring less than three and a half hours of staff time to complete will incur a lower fee than under the previous system. These modifications may ultimately reduce the costs borne by individuals who request records under FOAA but will also reduce the ability of municipalities and agencies to defray staff and material costs incurred to produce those records.

These changes to the FOAA may require updates to employee manuals, trainings, and general practices. Please contact us for additional information or guidance on this topic.

Does the Delta Variant Vary the New Rules on Remote Meetings?

With the Delta variant has come new recommendations suggesting that individuals once again wear masks in indoor public settings. We are getting a lot of questions regarding whether this new guidance counts as “an emergency requiring the board to meet by remote means,” such that remote participation is allowed under the new law. Because the current guidance is simply that masks should be worn indoors, and not that public or larger indoor meetings should be avoided, we do not think that the current situation qualifies as an emergency that requires the board to meet by remote means (as prudent as that might be). It is our belief that if the Governor signs a new order limiting in-person gatherings, or even if the CDC guidance is amended to discourage public meetings entirely, this may be enough to constitute an emergency. Only at that time will public bodies and their attorneys be able to assess the situation and determine whether a remote meeting is required, not just prudent.

Why Getting Connected Matters More Than Ever – And How We Can Help

This is likely not the first post or article you’ve read about the great broadband rush that’s sweeping the country. Working and schooling from home during the pandemic have highlighted the need to ensure that every community – no matter how rural – has access to broadband internet. The pandemic has also created economic opportunity by encouraging workers to relocate and potentially expand the reach of their companies into Maine. At the same time, federal and state funding has been made widely available to help municipalities and internet providers expand into areas that were previously deemed economically infeasible. The newly formed Maine Connectivity Authority, with its broad but as yet unclear mandate to expand broadband development, will undoubtedly provide new opportunities.

This funding spurt will most likely be short-lived, while the efforts to get a broadband project off the ground can be daunting and drawn-out. Municipalities must carefully consider whether it is better to go it alone, or to join with others in the region to form an interlocal association or broadband utility district. These decisions involve often complex analysis of what funding method will best serve the project, whether the network will ultimately be publicly or privately managed, and whether there is true economy of scale and increased funding opportunity by banding together. When it comes time to write any agreements to memorialize a joint regional project, organizational matters are key. What financial contributions are expected of members? How will the organization be run? Who will own the network? And what happens if a member decides to leave once the network is up and running? Unlike the types of utility districts municipalities are used to running, there is usually an expectation that a broadband network will be managed by a private entity. These private contracts, too, can and should be complex, as a failed relationship could leave residents digitally stranded.

We are here to provide assistance navigating this series of challenges, from the early planning stages through funding and contracting for these projects. Our Municipal Broadband Practice Group has been helping municipalities and regional organizations pursue broadband funding, construction, and contracting projects from conception to completion. With substantial experience in coalition building, interlocal agreements, telecommunications, and public financing, our practice group members were specifically chosen to work as a team to assist clients through the whole project life cycle.

Please contact kcollins@preti.com for more information.

Municipalities to Resume In-Person Public Meetings

After nearly a year and a half of remote proceedings, Maine municipal, county, and school boards will soon be required to reconvene in-person public meetings. On June 21, Governor Mills signed into law L.D. 32, “An Act Regarding Remote Participation in Public Proceedings.” The new law finally authorizes some remote participation in meetings – an issue that was quite divisive in pre-COVID days – but it does put an end to the type of remote meetings we’ve all grown used to.

Because last year’s “omnibus bill” which authorized remote meetings will remain in effect for 30 days after the state of emergency ends on June 30, L.D. 32 (codified at 1 MRS § 403-B) will become the governing law as of July 30, 2021. Per this emergency amendment, members of a public body must be physically present for public proceedings, except when doing so is “not practicable.” The circumstances under which being physically present may not be practicable include: an emergency requiring the body to meet by remote means; illness; absence from the jurisdiction and significant difficulties traveling to attend in person. A body must adopt a written policy governing the conditions upon which its members and members the public may participate by remote means. This policy must provide the public an opportunity to attend by remote methods when members of the body participate in such a way. A body may not limit public attendance at a proceeding solely to remote methods, except in case of emergency.

During hybrid meetings, all votes taken must be taken by roll call vote. Additionally, notice must include information on how the public may access the proceeding using remote methods, as well as identify a location for members of the public to attend in person. The body must make all documents and other materials they consider during the meeting available to the members of the public who attend by remote methods to the same extent they are available to those who attend in person, as long as it does not incur additional costs.

Note that these requirements apply solely to members of the body and public. This does not limit municipal staff or counsel from continuing to participate remotely.