NTIA-MMG-2022 NOFO.pdf

Notice of Funding Opportunity – 1

NOTICE OF FUNDING OPPORTUNITY

MIDDLE MILE GRANT PROGRAM

EXECUTIVE SUMMARY

A. Federal Agency Name

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

B. Funding Opportunity Title

Middle Mile Grant Program

C. Announcement Type

Initial

D. Funding Opportunity Number

NTIA-MMG-2022

E. Assistance Listing (CFDA Number)

11.033

F. Key Dates

Complete applications must be received by NTIA through the Application Portal no later than 11:59 p.m. Eastern Daylight Time (EDT) on September 30, 2022.

NTIA expects to complete its review, selection of successful applicants, and award processing by February 16, 2023. NTIA expects that the start date for awards under this Notice of Funding Opportunity (NOFO) will be no earlier than March 1, 2023.

G. Application Submission Address

Complete application packets must be submitted electronically through the NTIA Application Portal. Complete applications or portions thereof submitted by postal mail, courier, email, facsimile, or other means will not be accepted. See Section IV of this NOFO for detailed information concerning application submission requirements.

Notice of Funding Opportunity – 2

H. Funding Opportunity Description

The Middle Mile Broadband Infrastructure Grant (MMG) Program provides funding for the construction, improvement, or acquisition of middle mile infrastructure. The purpose of the grant program is to expand and extend middle mile infrastructure to reduce the cost of connecting areas that are unserved or underserved to the internet backbone. See Section I of this NOFO for the full Program Description.

I. Funding Instrument

Grant.

J. Eligibility

To apply for the MMG Program, an entity must be a State, political subdivision of a State, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company, telecommunications cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning council, Native entity, economic development authority, or any partnership of two (2) or more of these entities.

K. Anticipated Amounts

NTIA will make up to $980,000,000 available for federal assistance under the MMG Program ($1,000,000,000 minus two percent set aside to cover NTIA’s administrative costs). NTIA expects to make awards under this program within the following funding range: $5,000,000 to $100,000,000. The period of performance for grants issued pursuant to this program ends five years from the date on which the grant funds are made available to the eligible entity.

L. Cost Sharing/Matching

The amount of a middle mile grant awarded to an eligible entity through this program may not exceed 70 percent of the total project cost.1

FULL ANNOUNCEMENT TEXT

Table of Contents I. Program Description A. Overview of the Middle Mile Grant Program B. Definitions II. Federal Award Information A. Funding Availability B. Period of Performance C. Award Amount

1 Infrastructure Investment and Jobs Act of 2021, Division F, Title IV, § 60401(f), Public Law 117-58, 135 Stat. 429 (November 15, 2021).

Notice of Funding Opportunity – 3

D. Treatment of Unallocated Funds E. Type of Funding Instrument III. Eligibility Information and Program Details A. Eligible Applicants B. MMG Program Applicant Qualifications C. Cost Sharing or Matching D. Buildout Benchmarks E. Prioritization of Applications Meeting Statutory Criteria F. Connections to Anchor Institutions G. Special Rules for Tribal Governments and Native Entities H. Fair Labor Practices I. Highly Skilled Workforce J. Advancing Equitable Workforce Development and Job Quality Objectives K. Climate Resilience L. Civil Rights and Nondiscrimination Law Compliance M. Other IV. Application and Submission Information A. Address to Request Application Package B. Content and Form of Applications C. Application Format D. Requirements for Attachments Submitted through NTIA’s Grant Application System 27 E. Certifications Regarding Debarment and Suspension F. System for Award Management G. Submission Dates and Times H. Intergovernmental Review I. Funding Restrictions J. Material Representations and Public Disclosure of Applications K. Other Submission Requirements V. Application Review Information A. Review Process for the MMG Program B. Federal Awarding Agency Review of Risk Posed by Applicants C. Anticipated Announcement and Award Dates VI. Federal Award Administration Information A. Federal Award Notices B. Notification to Unsuccessful Applicants C. Retention of Unsuccessful Applications D. Administrative and National Policy Requirements E. Reporting F. Recipient Integrity and Performance Matters G. Audit Requirements H. Federal Funding Accountability and Transparency Act of 2006 VII. Federal Awarding Agency Contact(s) VIII. Other Information A. Transparency B. Protected and Proprietary Information C. Funding Availability and Limitation of Liability

Notice of Funding Opportunity – 4

D. Third Party Beneficiaries E. Waiver Authority F. Paperwork Reduction Act G. Transparency, Accountability, And Oversight Required H. Unauthorized Use of Funds

I. Program Description

The National Telecommunications and Information Administration (NTIA) issues this Notice of Funding Opportunity (NOFO) to describe the requirements under which it will award grants for the Middle Mile Grant (MMG) Program, authorized by the Infrastructure Investment and Jobs Act of 2021, Division F, Title IV, Section 60401, Public Law 117-58, 135 Stat. 429 (November 15, 2021) (Infrastructure Act or Act), also known as the Bipartisan Infrastructure Law. The MMG Program provides funding for the construction, improvement, or acquisition of middle mile infrastructure.

A. Overview of the Middle Mile Grant Program

In recent decades, access to the internet has played a critical and growing role in the ways in which Americans work, learn, receive health care, and participate in democracy. The COVID-19 pandemic crystalized what many have known for a very long time: Broadband internet access is not a luxury, but a necessity, for all Americans, regardless of their age, race, or income, irrespective of where they live, what languages they speak, what resources they have at their disposal, and what specific challenges they may face in their daily lives.

Recognizing broadband’s fundamental role in today’s society and its centrality to our nation’s continued health and prosperity, President Biden has pledged that every American must have access to a reliable, affordable, high-speed broadband connection. Full participation in our twenty-first century economy requires no less. Yet affordable, reliable, high-speed internet access has remained elusive to many for too long, because they live in a location where no service is available, the speed or quality of the service available is unreliable, or the offering available is unaffordable. This digital divide is particularly acute for communities of color and lower-income areas and spans both urban and rural areas of the country.

Passed on a bipartisan basis, the Infrastructure Act established the Middle Mile Grant Program to complement other programs focused on internet connectivity and digital equity. Middle mile infrastructure does not reach the end user’s location, but typically aggregates large quantities of traffic for carriage between networks. The variety of middle mile arrangements is broad. Middle mile infrastructure might carry traffic via undersea cable to remote locations such as Hawaii or American territories and possessions elsewhere in the Pacific, may “backhaul” wireless traffic via a fiber-optic link from an antenna mounted on a tower to the provider’s wired network, may bring the internet to previously unserved Tribal or Native lands, or may simply connect neighboring towns. Middle mile service, moreover, might be offered by a wide range of entities, from traditional retail Internet Service Providers, large technology companies that do not offer retail broadband at all, or electric utilities that increasingly recognize their capability to transform the communications market. Regardless of who deploys and operates them, middle mile connections are crucial to connectivity and competition.

Notice of Funding Opportunity – 5

Recognizing the middle mile’s central importance, Congress appropriated $1 billion for the MMG Program and identified two key objectives: to “encourage the expansion and extension of middle mile infrastructure to reduce the cost of connecting unserved and underserved areas to the backbone of the internet” and to “promote broadband connection resiliency through the creation of alternative network connection paths that can be designed to prevent single points of failure on a broadband network.”2

NTIA looks forward to receiving and reviewing a broad range of applications proposing creative ways to fill the gaps in our nation’s middle mile infrastructure and advance our national goals of increasing connectivity, affordability, and equity.

B. Definitions

(1) Anchor Institution.—The term “anchor institution” means a school, library, medical or healthcare provider, community college or other institution of higher education, or other community support organization or entity.

(2) Assistant Secretary.—The term “Assistant Secretary” means the Assistant Secretary of Commerce for Communications and Information or the individual who holds any successor position.

(3) Commission.—The term “Commission” means the Federal Communications Commission

(FCC).

(4) Eligible Entity.—The term “eligible entity” means— (A) a State, political subdivision of a State, Tribal government, technology company, electric utility, utility cooperative, public utility district, telecommunications company, telecommunications cooperative, nonprofit foundation, nonprofit corporation, nonprofit institution, nonprofit association, regional planning council, Native entity, or economic development authority; or (B) a partnership of two (2) or more entities described in (A).

(5) FCC Fixed Broadband Map.—The term “FCC fixed broadband map” means the map created by the Commission under Section 802(c)(1)(B) of the Communications Act of 1934 (47 U.S.C. § 642(c)(1)(B)).

(6) Indian Tribe.—The term “Indian Tribe” means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. § 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(7) Interconnect.—The term “interconnect” means the physical linking of two networks for the mutual exchange of traffic on non-discriminatory terms and conditions.

2 Infrastructure Act § 60401(b)(1).

Notice of Funding Opportunity – 6

(8) Internet Exchange Facility.—The term “internet exchange facility” means physical infrastructure through which internet service providers and content delivery networks exchange internet traffic between their networks.

(9) Middle Mile Infrastructure.—The term “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.

(10) Middle Mile Grant.—The term “middle mile grant” means a grant awarded under the MMG Program.

(11) Native Entity.—The term “Native entity” means— (A) an Indian Tribe; (B) an Alaska Native Corporation; (C) a Native Hawaiian organization (as defined in Section 6207 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. § 7517)); (D) the Department of Hawaiian Home Lands; and (E) the Office of Hawaiian Affairs.

(12) State.—The term “State” means any State of the United States, the District of Columbia and the U.S. Territories and possessions.

(13) Submarine Cable Landing Station.—The term “submarine cable landing station” means a cable landing station, as that term is used in Section 1.767(a)(5) of Title 47, Code of Federal Regulations (or any successor regulation), that can be utilized to land a submarine cable by an entity that has obtained a license under the first Section of the Act entitled “An Act relating to the landing and operation of submarine cables in the United States”, approved May 27, 1921 (47 U.S.C. § 34) (commonly known as the “Cable Landing Licensing Act”).

(14) Tribal Land.—The term “Tribal Land” means (A) any land located within the boundaries of— (i) an Indian reservation, pueblo, or rancheria; or (ii) a former reservation within Oklahoma;

(B) any land not located within the boundaries of an Indian reservation, pueblo, or rancheria, the title to which is held— (i) in trust by the United States for the benefit of an Indian Tribe or an individual Indian; (ii) by an Indian Tribe or an individual Indian, subject to restriction against alienation under laws of the United States; or (iii) by a dependent Indian community; (C) any land located within a region established pursuant to Section 7(a) of the Alaska Native Claims Settlement Act (43 U.S.C. § 8 1606(a)); (D) Hawaiian Home Lands, as defined in Section 801 of the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. § 4221); or (E) those areas or communities designated by the Assistant Secretary of Indian Affairs of the Department of the Interior that are near, adjacent, or contiguous to reservations where financial assistance and social service programs are provided to Indians because of their status as Indians.

Notice of Funding Opportunity – 7

(15) Tribal Government.—The term “Tribal government” means the recognized governing body of any Indian or Alaska Native tribe, band, nation, pueblo, village, community, component band, or component reservation, individually identified (including parenthetically) in the list published by the Secretary of the Interior most recently as of the date of enactment of the Act pursuant to Section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. § 5131).3

(16) Trust Land.—The term “trust land” means any land that (A) is held in trust by the United States for Native Americans; (B) is subject to restrictions on alienation imposed by the United States on Indian lands (including native Hawaiian homelands); (C) is owned by a Regional Corporation or Village Corporation, as such terms are defined in Section 3(g) and 3(j) of the Alaska Native Claims Settlement Act, respectively (43 U.S.C. § 1602(g), (j)); or (D) is on any island in the Pacific Ocean if such land is, by cultural tradition, communally-owned land, as determined by the Secretary of the Interior.

(17) Underserved.—The term “underserved,” with respect to an area, means an area— (A) that is designated as a Tribally underserved area through the process set forth in Section III.G.2 of this NOFO; or (B) that— (i) is of a standard size not larger than a census block, as established by the Commission; (ii) is not an unserved area; and (iii) as determined in accordance with the FCC fixed broadband map, does not have access to broadband service with— (I) except as provided in (II) — (aa) a download speed of not less than 100 megabits per second; and (bb) an upload speed of not less than 20 megabits per second; or (II) minimum download and upload speeds established as benchmarks by the Commission for purposes of the Act after the date of enactment of the Act, if those minimum speeds are higher than the minimum speeds required under (I).

(18) Unserved.—The term “unserved,” with respect to an area, means an area— (A) that is designated as a Tribally underserved area through the process set forth in Section III.G.2 of this NOFO; or (B) that— (i) is of a standard size not larger than a census block, as established by the Commission; and (ii) as determined in accordance with the FCC fixed broadband map, does not have access to broadband service with— (I) except as provided in (II)— (aa) a download speed of not less than 25 megabits per second; and (bb) an upload speed of not less than 3 megabits per second; or (II) minimum download and upload speeds established as benchmarks by the Commission for purposes of this Act after the date of enactment of this Act, if those minimum speeds are higher than the minimum speeds required under (I).

II. Federal Award Information

A. Funding Availability

NTIA will make up to $980,000,000 available for federal assistance under the MMG Program.

3 See Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, at 86 Fed. Reg. 7554 (Jan. 29, 2021); see also Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs; Correction, 86 Fed. Reg. 18552 (Apr.

9, 2021) (updated by the Secretary of the Interior).

Notice of Funding Opportunity – 8

B. Period of Performance

To be eligible to obtain a middle mile grant, an eligible entity shall agree to complete the buildout of the middle mile infrastructure described in the application by not later than five (5) years after the date on which amounts from the grant are made available to the eligible entity.

1. Extensions

An eligible entity may submit a request for an extension, which must include the justification for such an extension and all relevant circumstances. At the request of an eligible entity, the Assistant Secretary may extend the buildout deadline by not more than one (1) year if the eligible entity certifies that:

(i) the eligible entity has a plan for use of the grant funds;

(ii) the project to build out middle mile infrastructure is underway; or

(iii) extenuating circumstances require an extension of time to allow completion of the project to build out middle mile infrastructure.

Requests for extensions will be granted at the sole discretion of the Assistant Secretary.

If an extension is granted, the Assistant Secretary shall modify any milestones as necessary under the extension.

2. Reversion of Funds

Unless the Assistant Secretary has granted an eligible entity an extension of time to complete its project, NTIA will make any grant funds not expended by the eligible entity by the end of the performance period set forth in the Infrastructure Act available to other eligible entities for the purposes provided in the MMG Program.

C. Award Amount

NTIA expects to make awards under this program within the following funding range:

$5,000,000 to $100,000,000. This range is not a required minimum or maximum, but eligible entities requesting amounts for projects outside of this range must provide a reasonable explanation for the variance.

D. Treatment of Unallocated Funds

In the event that any funds remain available after grants have been awarded to eligible entities that submitted approved applications during the initial round of funding for the MMG Program, the Assistant Secretary shall either direct that additional applications submitted in response to this NOFO be subject to further review, issue a new Notice of Funding Opportunity to address disbursement of remaining funds, or both.

E. Type of Funding Instrument

The funding instrument for awards made pursuant to the NOFO will be a grant.

Notice of Funding Opportunity – 9

III. Eligibility Information and Program Details

A. Eligible Applicants

An applicant must be an eligible entity as defined in Section I.B of this NOFO.

B. MMG Program Applicant Qualifications

Prior to entering into any award agreement, the Assistant Secretary shall ensure, consistent with the requirements below, that any prospective middle mile grant recipient:

1. Is capable of carrying out the proposed project in a competent manner, including a plan to attract, train, or retain an appropriately skilled and credentialed workforce; and

2. Has the financial, managerial, technical, and operational capability to carry out the proposed project and operate the resulting middle mile broadband network.

To allow the Assistant Secretary to ensure the eligible entity meets the requirements set forth above, each eligible entity must take the steps set forth below in connection with any application for a middle mile grant. Additional threshold, project-specific, eligibility criteria are detailed in Section V.A.1.

1. Financial Capability

a. Certifications

Each applicant must supply a certification from an officer-level employee (or individual of comparable rank) attesting that it is financially qualified to meet the obligations associated with a project, that they will have available funds for all project costs that exceed the amount of the grant, and that they will comply with all MMG Program requirements, including service milestones. To the extent the Grants Officer disburses funding only upon completion of the associated tasks, each applicant must also certify that it has and will continue to have sufficient financial resources to cover its eligible costs for the project until such time as the Grants Officer authorizes additional disbursements.

b. Letter of Credit

During the application process, each applicant must submit a letter from a bank meeting eligibility requirements consistent with those set forth in 47 C.F.R. § 54.804(c)(2) committing to issue an irrevocable standby letter of credit, in the required form, to the applicant. The letter shall at a minimum provide the dollar amount of credit offered and the issuing bank’s agreement to follow the terms and conditions of NTIA’s model letter of credit. NTIA shall establish a model letter of credit substantially similar to the model letter of credit established by the Federal Communications Commission in connection with the Rural Digital Opportunity Fund (RDOF).4

4 Rural Digital Opportunity Fund Order, 35 FCC Rcd at 773-77, Appx. C.

Notice of Funding Opportunity – 10

NTIA will ensure, prior to issuing a middle mile grant award, that each eligible entity obtains an acceptable, irrevocable standby letter of credit in a value of no less than 25 percent of the award amount.

Each eligible entity shall provide with its letter of credit an opinion letter from its legal counsel clearly stating, subject only to customary assumptions, limitations, and qualifications, that in a proceeding under Title 11 of the United States Code, 11 U.S.C. § 101 et seq. (the “Bankruptcy Code”), the bankruptcy court would not treat the letter of credit or proceeds of the letter of credit as property of the winning bidder's bankruptcy estate under Section 541 of the Bankruptcy Code.

An eligible entity may obtain a new letter of credit or renew its existing letter of credit to reduce its value in accordance with the following limitations:

• Upon demonstrating to the satisfaction of the Assistant Secretary that it has completed the buildout of 40 percent of project miles, an eligible entity may obtain a new letter of credit or renew its existing letter of credit so that it is valued at no less than 20 percent of the award amount.

• Upon demonstrating to the satisfaction of the Assistant Secretary that it has completed the buildout of 60 percent of project miles, an eligible entity may obtain a new letter of credit or renew its existing letter of credit so that it is valued at no less than 15 percent of the award amount.

• Upon demonstrating to the satisfaction of the Assistant Secretary that it has completed the buildout of 80 percent of project miles, an eligible entity may obtain a new letter of credit or renew its existing letter of credit so that it is valued at no less than 10 percent of the award amount.

c. Audited Financial Statements

Each applicant shall submit financial statements from the three prior fiscal years that are audited by an independent certified public accountant. If the applicant is not audited in the ordinary course of business, in lieu of submitting audited financial statements it must submit unaudited financial statements from the three prior fiscal years and certify that it will provide financial statements from the three prior fiscal years that are audited by an independent certified public accountant by an NTIA specified deadline. The Assistant Secretary will not approve any middle mile grant award unless the Assistant Secretary determines that the documents submitted demonstrate the applicant’s financial capability with respect to the proposed project.

Notice of Funding Opportunity – 11

2. Managerial Capability

Applicants shall submit to the Assistant Secretary one-page resumes for (a) all key management personnel and (b) all key personnel of subcontractors or other entities that will play substantial roles in building, managing, or operating the middle mile network built using MMG Program funding. In addition, each applicant shall submit any necessary organizational chart(s) detailing all of its parent companies, subsidiaries, and affiliates. Each applicant must also provide a narrative describing the applicant’s readiness to manage a middle mile broadband network. This narrative should describe the experience and qualifications of key management set to undertake this project, the applicant’s experience undertaking projects of similar size and scope, recent and upcoming organizational changes including mergers and acquisitions, and relevant organizational policies. The Assistant Secretary will not approve any middle mile grant unless the Assistant Secretary determines that the documents submitted demonstrate the applicant’s managerial capability with respect to the proposed project.

3. Technical Capability

Each applicant must certify that it is technically qualified to complete and operate the proposed project and that it is capable of carrying out the funded activities in a competent manner, including that it will use an appropriately skilled and credentialed workforce (see Section III.I of this NOFO).

Each applicant must submit a network design diagram, project costs, build-out timeline and milestones for project implementation, and a capital investment schedule evidencing that the applicant will complete build-out and the initiation of service within five years from the date on which the grant funds are made available to the eligible entity and will meet interim buildout requirements set forth herein and in any other binding document. The Assistant Secretary will not approve any middle mile grant unless the Assistant Secretary determines that the materials submitted demonstrate the applicant’s technical capability with respect to the proposed project.

4. Compliance With Laws

Each applicant must demonstrate that it is capable of carrying out funded activities in a competent manner in compliance with all applicable federal, State, and local laws. To ensure that an applicant complies with occupational safety and health requirements, applicants must permit workers to create worker-led health and safety committees with which management will meet upon reasonable request.

5. Operational Capability

Each applicant must supply a certification from an officer-level employee (or individual of comparable rank) attesting to the applicant’s operational capability to complete and operate the proposed project. If applicable, the applicant must submit a certification from an officer-level employee (or individual of comparable rank) that it has operated a middle mile broadband network for at least two years or that it is a wholly owned subsidiary of such an entity and must specify the number of years the applicant or its parent company has been operating.

Notice of Funding Opportunity – 12

If the applicant has provided a voice and/or broadband service, it must certify that it has timely filed Commission Form 477s and the Broadband DATA Act submission, if applicable, as required during this time period, and otherwise has complied with the Commission’s rules and regulations. Alternatively, it must explain any pending or completed enforcement action, civil litigation, or other matter in which it failed to comply or was alleged to have failed to comply with Commission rules or regulations.

If the applicant has operated only an electric transmission or distribution service, it must submit qualified operating or financial reports that it has filed with the relevant financial institution for the relevant time period along with a certification that the submission is a true and accurate copy of the reports that were provided to the relevant financial institution.

The Assistant Secretary will not approve any middle mile grant award unless the Assistant Secretary determines that the documents submitted demonstrate the applicant’s operational capability with respect to the proposed project.

6. Ownership

Each applicant shall provide ownership information consistent with the requirements set forth in 47 C.F.R. § 1.2112(a)(1)-(7).

C. Cost Sharing or Matching

The amount of a middle mile grant awarded to an eligible entity may not exceed 70 percent of the total project cost.5 Except for grants made to Tribal Governments and Native entities, the Infrastructure Act does not contemplate waiver of this requirement, and the Assistant Secretary will not entertain requests for such waivers.

Matching funds may be in the form of either cash or in-kind contributions consistent with the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. Part 200.6 In-kind contributions, which include third-party in-kind contributions, are non-cash donations of property, goods or services, which benefit a federally assisted project, and which may count toward satisfying the non-federal matching requirement of a project’s total budgeted costs when such contributions meet certain criteria.7 In-kind contributions must be allowable and allocable project expenses. The rules governing allowable in-kind contributions are detailed and encompass a wide range of properties and services. NTIA encourages applicants to thoroughly consider potential sources of in-kind contributions, which, depending on the particular property or service and the applicable federal cost principles, could include employee or volunteer services; equipment; supplies; indirect costs; computer hardware and software; and use of facilities. In the broadband context, in-kind contributions could include, consistent with federal cost principles, access to rights of way, pole attachments, conduits, 5 Infrastructure Act § 60401(f).

6 See 2 C.F.R. § 200.306.

7 See id.

Notice of Funding Opportunity – 13 easements, or access to other types of infrastructure. It is important to note that federal funds may not be used as non-federal match, except as expressly provided by federal statute.8

D. Buildout Benchmarks

Buildout benchmarks will be established as a condition of any middle mile grant. An eligible entity that receives a middle mile grant shall demonstrate to the satisfaction of the Assistant Secretary that it has completed the buildout of 40 percent of project miles by the end of the second year after the award date, 60 percent of project miles by the end of the third year, 80 percent of project miles by the end of the fourth year, and 100 percent of project miles by the end of the fifth year. For the sake of clarity, the project must be completed, lit, and operating no later than five years from the date on which the grant funds are made available to the eligible entity.

The Assistant Secretary retains the authority to modify buildout benchmarks after consultation with an applicant, imposing more aggressive or less aggressive buildout benchmarks if the nature of and circumstances surrounding the project make it reasonable to do so (e.g., the project covers a short distance or can be deployed in large part using existing conduit, or the project will leverage infrastructure slated to be constructed using other federal funds, but the schedule for the deployment of that infrastructure is incompatible with the benchmarks set out above).

E. Prioritization of Applications Meeting Statutory Criteria

As directed by Section 60401(d)(2) of the Infrastructure Act, the MMG Program will prioritize applications that meet at least two of the following five criteria:

1. The eligible entity adopts fiscally sustainable middle mile strategies.9

2. The eligible entity commits to offering non-discriminatory interconnection to terrestrial and wireless last mile broadband providers and any other party making a bona fide request.

3. The eligible entity identifies specific terrestrial and wireless last mile broadband providers that have (i) expressed written interest in interconnecting with middle mile infrastructure planned to be deployed by the eligible entity; and (ii) demonstrated sustainable business plans or adequate funding sources with respect to such interconnection described in (i).

8 See id.

9 In particular, applicants should submit with their application financial studies, analyses, or other materials demonstrating that reasonably anticipated revenues associated with middle mile projects that are constructed, improved, or acquired using MMG Program funds will be sufficient to allow long-term provision of service in light of reasonably anticipated costs. The required documentation includes organizational historical financials, audited financials, pro-forma financial projections and analysis to substantiate the sustainability of the proposed project, and submission of a letter of credit valued at no less than 25 percent of the requested award amount.

Notice of Funding Opportunity – 14

4. The eligible entity has identified supplemental investments or in-kind support (such as waived franchise or permitting fees) that will accelerate the completion of the planned project.

5. The eligible entity has demonstrated that the middle mile infrastructure will benefit national security interests of the United States and the Department of Defense.10

F. Connections to Anchor Institutions

Each applicant seeking an award to build middle mile infrastructure using fiber-optic technology shall certify that the proposed project, upon completion, will include direct interconnection facilities that will facilitate the provision of broadband service, at speeds not less than 1 Gigabit per second for downloads and 1 Gigabit per second for uploads to anchor institutions located within 1,000 feet of the middle mile infrastructure.

An eligible entity applying for a middle mile grant may seek, and the Assistant Secretary may grant, a waiver of the requirements set out in the previous paragraph, in full or in part, to the extent the eligible entity demonstrates that the requirement is not technically or economically feasible. See Section VIII.E.

G. Special Rules for Tribal Governments and Native Entities

1. Waivers and Alternative Requirements

The Infrastructure Act permits the Assistant Secretary, in consultation with Tribal governments and Native entities, to waive, or specify alternative requirements in connection with, most directives governing the MMG Program if the Assistant Secretary finds that waiver or modification of the requirement is necessary for (a) the effective delivery and administration of middle mile grants to Tribal governments or (b) the construction, improvement, or acquisition of middle mile infrastructure on trust land.

2. Tribal Unserved and Underserved Areas

A Tribal Government may certify whether an area within its own Tribal Land is unserved or underserved based on criteria of its choosing. Any such Tribal Government must certify that the areas where middle mile service is proposed (including any such areas where a provider offers, or has proposed to offer, last-mile service) are unserved or underserved and provide a statement on Tribal Letterhead explaining how the determination that the area is unserved or underserved was made and additional supporting information if available. The Department of Hawaiian Home Lands may also certify whether Tribal Lands in Hawaii are unserved. Neither a Tribal Government nor the Department of Hawaiian Home Lands may certify Tribal Lands as unserved or underserved if there exists a legally binding agreement between (a) a Tribal Government, the

10 Relevant considerations here include, but are not limited to, whether the funded middle mile infrastructure will increase the redundancy and resiliency of telecommunications networks that support broadband services, other commercial telecommunications services, protection of other critical national infrastructure (e.g., the national power grid and power transmission facilities), border security, or other physical infrastructure sensor and monitoring.

Notice of Funding Opportunity – 15

Department of Hawaiian Home Lands, or an authorized agent thereof and (b) a broadband service provider under which the broadband service provider is committed to deploying and providing broadband internet services at speeds of no less than 100 Mbps downstream and 20 Mbps upstream. A Tribal Government and the Department of Hawaiian Home Lands must disclose whether it has terminated an existing agreement of this type in order to support a certification that an area is unserved or underserved under this provision.

H. Fair Labor Practices

Applicants must have a demonstrated record of and plans to be in compliance with federal labor and employment laws where applicable. This will help ensure that projects are carried out in accordance with the law, assist NTIA in ensuring that a prospective awardee is capable of carrying out activities funded by an award in a competent manner in compliance with all applicable federal, State, and local laws, and promote the effective and efficient completion of high-quality middle mile broadband infrastructure projects by ensuring a reliable supply of skilled workers and minimizing disruptive and costly delays.

In order for NTIA to evaluate an applicant’s demonstrated record of and plans to be in compliance with federal labor and employment laws, each applicant must provide the following:

1. Information on their record of compliance with federal labor and employment laws, as well as the records of any other entities participating in the project, including contractors and subcontractors. This information must include, at a minimum, information on these entities’ compliance with federal labor and employment laws on broadband deployment projects in the last three years. For example, the applicant should provide data on its historical use of contracting and subcontracting arrangements, including staffing plans, and at least one example of each contractor and subcontractor’s past performance in the context of a similar project.

2. A certification from an Officer/Director-level employee (or equivalent) of the applicant evidencing consistent past compliance with federal labor and employment laws by the applicant, as well as contractors and subcontractors.

3. Written disclosure of any instances in which the applicant, contractors, or subcontractors have been found to have violated laws such as the Occupational Safety and Health Act, the Fair Labor Standards Act, or any other applicable labor and employment laws for the preceding three years.

4. A written plan for ensuring compliance with federal labor and employment laws. These plans must address, at a minimum, how the applicant will ensure compliance in its own labor and employment practices, as well as that of its contractors and subcontractors, including (1) information on applicable wage scales and wage and overtime payment practices for each class of employees expected to be involved directly in the physical construction of the broadband network and (2) how the applicant will ensure the implementation of workplace safety committees that are authorized to raise health and safety concerns in connection with the delivery of deployment projects. An effective plan for compliance with federal labor and employment laws can include an applicant’s binding commitment to strong labor standards and protections for the project workforce (including contractors and subcontractors), which include:

Notice of Funding Opportunity – 16

• Using a directly employed workforce, as opposed to a subcontracted workforce;

• Paying prevailing wages and benefits to workers, including compliance with Davis-

Bacon and Service Contract Act requirements, where applicable, and collecting the required certified payrolls;

• Using project labor agreements (i.e., pre-hire collective bargaining agreements between unions and contractors that govern terms and conditions of employment for all workers on a construction project);

• Use of local hire provisions;

• Commitments to union neutrality;

• Use of labor peace agreements;11

• Use of an appropriately skilled workforce (e.g., through Registered Apprenticeships or other joint labor-management training programs that serve all workers, particularly those underrepresented or historically excluded);

• Use of an appropriately credentialed workforce (i.e., satisfying requirements for appropriate and relevant pre-existing occupational training, certification, and licensure); and

• Taking steps to prevent the misclassification of workers.

NTIA will offer technical assistance and may provide additional guidance on this issue.

I. Highly Skilled Workforce

To ensure that applicants have the technical and operational capacity to carry out the project, applicants must submit a plan for ensuring that the project workforce will be an appropriately skilled and credentialed workforce (including by the applicant and each of its contractors and subcontractors). For purposes of this Section, the “project workforce” includes those employees of the applicant, its contractors, or subcontractors directly engaged in the physical construction of the middle mile infrastructure, but does not include support staff of senior management. The plan for a highly skilled workforce should include the following information:

• The ways in which the applicant will ensure the use of an appropriately skilled workforce, e.g., through Registered Apprenticeships or other joint labor-management training programs that serve all workers;

• The steps that will be taken to ensure that all members of the project workforce will have appropriate credentials, e.g., appropriate and relevant pre-existing occupational training, certification, and licensure;

11 Ability to require labor peace agreements:

• By a governmental entity: Where a governmental entity receives NTIA grant funds, whether directly as an eligible entity or as a subgrantee, and the governmental entity uses those funds for the construction of facilities over which it will maintain a proprietary interest (e.g., governmental ownership of the network), it is authorized and encouraged to require labor peace agreements, unless prohibited by state or local law.

• By a non-governmental subgrantee: Subgrantees that are non-governmental entities, and construct broadband facilities over which no governmental entity maintains a proprietary interest, are authorized and encouraged to require labor peace agreements, unless prohibited by state or local law.

Notice of Funding Opportunity – 17

• Whether the workforce is unionized;

• Whether the workforce will be directly employed or whether work will be performed by a subcontracted workforce; and

• The entities that the applicant plans to contract and subcontract with in carrying out the proposed work.

If the project workforce or any applicant’s, contractor’s, or subcontractor’s workforce is not unionized, the applicant must also provide with respect to the non-union workforce:

• The job titles and size of the workforce (FTE positions, including for contractors and subcontractors) required to carry out the proposed work over the course of the project and the entity that will employ each portion of the workforce;

• For each job title required to carry out the proposed work (including contractors and subcontractors), a description of:

o safety training, certification, and/or licensure requirements (e.g., OSHA 10, OSHA 30, confined space, traffic control, or other training as relevant depending on title and work), including whether there is a robust in-house training program with established requirements tied to certifications, titles; and o information on the professional certifications and/or in-house training in place to ensure that deployment is done at a high standard.

J. Advancing Equitable Workforce Development and Job Quality Objectives

A skilled workforce is critical to meeting infrastructure buildout timelines under the Infrastructure Act and connecting households across the country to reliable, affordable, high-speed broadband. A well-trained workforce will also allow for the safe deployment of sustainable networks. To meet the workforce needs of the MMG Program, applicants must make appropriate investments to develop a skilled, diverse workforce for the jobs that the applicants need to fill.

Each applicant must provide the information described below as part of its application:

1. A description of how it will support the development and use of a highly skilled workforce capable of carrying out MMG Program work in a manner that is safe and effective.

2. A description of the applicant’s participation in sector-based partnerships among employers, education and training providers, unions and any other labor-management organizations, the public workforce system, unions, and worker organizations, and community-based organizations that provide relevant training (including through Registered Apprenticeships and pre-apprenticeships that are integrated with Registered Apprenticeships, or other quality work-based learning programs) and provide wrap-around services to support workers to access and complete training (such as child care, transportation, mentorship, etc.), to attract, train, retain, or transition to meet local workforce needs and increase high-quality job opportunities.12

12 For additional information on sector-based partnerships, eligible entities should review the Economic Development Administration’s Good Jobs Challenge NOFO, EDA-HDQ-ARPGJ-2021-2006964, available at https://www.grants.gov/web/grants/view-opportunity.html?oppID=334720.

https://www.grants.gov/web/grants/view-opportunity.html?oppID=334720

Notice of Funding Opportunity – 18

3. A description of how the applicant will plan to create equitable on-ramps into broadband-related jobs (e.g., how entities plan to engage or partner with stakeholders like State, Territorial, and local workforce boards, training partners, labor and community organizations); maintain job quality for new and incumbent workers engaged in the sector; and continually engage with labor organizations and community-based organizations to maintain worker voice throughout the planning and implementation process.

4. A description of how the applicant will ensure that the job opportunities created by the MMG Program and other broadband funding programs are available to a diverse pool of workers, including by engaging in targeted outreach to populations that have traditionally been underrepresented in broadband and information technology jobs, including but not limited to women and people of color. Applicants should be prepared to report on the demographics of the workforce (including contractors and subcontractors) that is engaged on a project utilizing MMG Program grant funding (this will be aggregate workforce data only, not personally identifiable information), and should expect that this data will be made public.

5. A description of other equitable workforce development and job quality activities the applicant participates in, including, for example:

a. Providing Registered Apprenticeships and pre-apprenticeships tied to a Registered Apprenticeship, joint labor management partnerships, and other high-quality, on-the-job training opportunities, which may include minimum requirements of contractor or subcontractor job hours to be performed by apprentices; and ensuring that such programs lead to employment with wages at rates not less than the rates prevailing on projects and other eligible activities of a similar character in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.

b. Offering “quality jobs.”13

c. Prioritizing the hiring of local workers, implementing robust and specific plans to recruit historically underrepresented populations facing labor market barriers, and ensuring that they have reasonable access to the job opportunities created by the applicant. Such populations may include communities of color, women, and other groups (such as persons with disabilities, LGBTQI+ people, disconnected youth, individuals in recovery, individuals with past criminal records, including justice-impacted and reentry participants, serving trainees participating in the SNAP, TANF, and WIC, and veterans and military spouses).

13 A “quality job” is defined as a job that (a) exceeds the local prevailing wage for an industry in the region, includes basic benefits (e.g., paid leave, health insurance, retirement/savings plan), and/or is unionized, and (b) helps the employee develop the skills and experiences necessary to advance along a career path. See Economic Development Administration, ARPA Good Jobs Challenge NOFO, EDA- HDQ-ARPGJ-2021-2006964, at n. 1, available at https://www.grants.gov/web/grants/view-opportunity.html?oppId=334720.

Notice of Funding Opportunity – 19

K. Climate Resilience

Applicants must demonstrate that they have sufficiently accounted for current and future weather- and…