Window Opens for $1 Billion Middle Mile Grant Program

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TAKEAWAYS

  • Supplemental pre-filing requirements will lengthen the application process.
  • Post-filing amendments will not be permitted.
  • Applicants should determine whether they meet the Build America, Buy America Act requirements or if they need to apply for a waiver.

As we have reported previously, the National Telecommunications and Information Administration (NTIA) released the Notice of Funding Opportunity (NOFO) for each of the three new Broadband Infrastructure Programs on May 13, 2022. While two of the programs will be planned and coordinated by state broadband agencies, the Middle Mile Broadband Infrastructure Program permits eligible entities to seek funding directly from the NTIA for proposed broadband projects. The application window for the Middle Mile program opened on June 21, 2022, and closes September 30, 2022.

As stated in the NOFO, “Middle mile infrastructure does not reach the end user’s location, but typically aggregates large quantities of traffic for carriage between networks.” The NOFO states that Middle Mile infrastructure “(A) means any broadband infrastructure that does not connect directly to an end-user location, including an anchor institution; and (B) includes— (i) leased dark fiber, interoffice transport, backhaul, carrier-neutral internet exchange facilities, carrier-neutral submarine cable landing stations, undersea cables, transport connectivity to data centers, special access transport, and other similar services; and (ii) wired or private wireless broadband infrastructure, including microwave capacity, radio tower access, and other services or infrastructure for a private wireless broadband network, such as towers, fiber, and microwave links.”

We’ve reviewed the materials released by the NTIA in connection with the opening of the Middle Mile funding window, and have several initial recommendations for prospective applicants:

  • Plan Early: Because the funding will come directly from the federal government, Middle Mile applicants will be required to register with the federal System for Award Management (SAM.gov) prior to submitting an application. The registration process is time-consuming and requires the submission of detailed corporate and bank information. Our experience has been that this process can take up to three weeks.
  • Closely Review Supplemental Information Requirements: In addition to demonstrating the need for the project, applicants must also submit supplemental information including: (i) an irrevocable stand-by letter of credit; (ii) audited financial statements; (iii) historical audited financial statements; and (iv) sufficient information to demonstrate that the project will provide service to underserved and unserved areas.
  • Public Policy Goals: Applicants also will need to provide information demonstrating that the proposal meets the program goals, including descriptions of the applicant’s (i) efforts to coordinate with local government and community organizations, including disclosures of any planned financial or equipment contributions and letters of support; (ii) commitment to offer non-discriminatory interconnection to last mile providers; and (iii) intention to increase the redundancy and resiliency of telecommunications networks and protect other critical national infrastructure, such as the national power grid and border security.
  • Build America, Buy America: All Middle Mile program applicants must certify that their proposals comply with the Build America, Buy America Act, which requires that all the iron, steel, manufactured products and construction materials are produced in the United States, unless a waiver is sought. The Secretary of Commerce may grant waivers of this requirement if an applicant can show that compliance with the Build America, Buy America Act: (1) would be inconsistent with the public interest; (2) is not possible because the types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or (3) will increase the cost of the overall project by more than 25 percent.

Now that the filing window has opened, applicants should begin their review of the required information as soon as possible. While filing before the September 30 deadline will not confer any advantage, an early review of the application and filing procedures is advised.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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