Broadband Funding Options: Show Me the Money!

Tuesday, November 23, 2021

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

Monday, November 15, 2021

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?

Tuesday, August 3, 2021

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

Monday, August 2, 2021

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

Wednesday, June 23, 2021

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.

Development Projects and the Limits of Moratoria

Friday, September 18, 2020

I am always struck at how vigorously some property owners oppose development projects, despite their having previously, and successfully, pursued identical projects. Do they not remember that they did the exact same thing? Is there some definition of fairness I am not aware of? Whatever the cause, it can be exasperating for the developer and detrimental to sound zoning and planning.

A recent case in my small town has really shined a light on just how absurd this can all be.

A landowner, in compliance with state law and as is her right, created a number of lots under the so-called 2 in 5 rule. Subject to a number of exemptions and exclusions, the general rule is that a landowner can create 2 lots in any 5-year period without needing municipal (i.e., planning board) approval. 30-A MRSA section 4401(4):

4. Subdivision. "Subdivision" means the division of a tract or parcel of land into 3 or more lots within any 5-year period that begins on or after September 23, 1971. This definition applies whether the division is accomplished by sale, lease, development, buildings or otherwise. The term "subdivision" also includes the division of a new structure or structures on a tract or parcel of land into 3 or more dwelling units within a 5-year period, the construction or placement of 3 or more dwelling units on a single tract or parcel of land and the division of an existing structure or structures previously used for commercial or industrial use into 3 or more dwelling units within a 5-year period.

For the landowner the benefits of this approach are numerous, but for the most part all revolve around not having to build infrastructure such as roads, sidewalks, electric utilities, water, sanitary sewer, and stormwater infrastructure, as well as not having to set aside or otherwise provide open or common space. For Maine’s relatively “cash poor, land rich” population, the 2 in 5 rule has been a way to monetize their land over time without a lot of upfront development costs or risks.

But back to my town where the land adjacent to this landowner’s 2 in 5 development was bought by a developer “from away,” who applied to the planning board for a residential subdivision approval. Almost a year later, the project is still languishing in front of planning board. The 2 in 5 landowner is now on the planning board and is circulating a citizens petition to enact a 24-month moratorium on any subdivision needing planning board approval. Putting aside the potential conflict of interest issues at play here, a 24-month moratorium is laughably illegal.

State law limits moratoria to a definite term of not more than 180 days. In certain circumstances, a moratoria may be extended for an additional term of not more than 180 days. Moratoria are not intended to simply stop development, but are instead intended to provide a municipality breathing room to thoughtfully look at issues and impacts around development and make evidenced-based policies to guide development.

In order to adopt a moratorium, the municipality must first have evidence that additional development is likely to overburden existing facilities or that there is a shortage of such facilities. What form this evidence takes is subject to some debate, ranging from mere statements from public facilities managers (e.g., school district, water district, sewer district, public works, and so on) to glossy consultant’s reports concluding that existing public facilities are or may be insufficient to adequately address additional development.

The second criteria is that the municipality’s comprehensive plan or ordinances are inadequate to protect resources from serious harm. I find this criteria sort of odd in that municipalities, if they have a zoning ordinance, must enact a zoning ordinance that is in compliance with a comprehensive plan, that, as its principal function is supposed to protect resources from serious harm and guide development in a responsibly and thoughtful way. It might be said that a moratorium allows a municipality to correct an otherwise deficient comprehensive plan.

Anytime a municipality considers a moratorium, it should do so carefully and thoughtfully.

Maine Governor Issues Executive Order Regarding the November Election

Thursday, August 27, 2020

Governor Mills has issued a new executive order to facilitate the November 2020 general election. The stated purpose of the order is to ensure the integrity of the ballot and to protect the public health during the COVID-19 emergency. 

The order includes a limit of 50 or fewer people in each polling place and that the statutory minimum number of voting booths are not required if it would make it difficult to have them more than 6 feet apart. Voter lines must be marked to enforce a six-foot separation between voters. Voter registration is modified to allow voters to register 15 days before the election rather than 21 days. Municipalities may consolidate their polling places with a public hearing 30 days prior to election rather than the standard 90 and move polling places with a public hearing 20 days prior to the election rather than 60. The requirement that all polling workers reside in the municipality or county in which they serve is suspended. School budget elections are simplified. Absentee ballots may be processed 7 days before the election, rather than 4. Voters may vote in person by absentee ballot without giving a reason until 5:00 pm on the second business day before the election (Friday October 30). The Secretary of State will help Clerks have secure external boxes to drop off absentee ballots.