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Challenges to Round 2 RUS Stimulus Applications Due May 23

By Paul B. Hudson and Robert Morgan
04.23.10
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The U.S. Department of Agriculture’s Rural Utilities Service (RUS) has opened a 30-day window for existing broadband service providers to respond to Round 2 Broadband Initiatives Program (BIP) stimulus applications. RUS has posted an electronic Public Notice Response portal by which existing service providers may view the proposed service areas of applicants and register to submit responses.

Existing service providers have until May 23, 2010, to submit data that RUS will use to consider whether funding should be awarded. This process is voluntary but is the only invited means for an existing service provider to attempt to rebut an applicant’s assertion that an area is unserved or underserved, or to otherwise affect the scoring of an application.

Existing service providers must submit the following data separately for the rural portion of each service area of each application to which they wish to respond: a PDF version of an advertisement offering service of at least 5 Mbps or higher within the rural portion of the area; the number of homes and businesses passed by their 5 Mbps service; and the number of subscribers for each tier of service. (Note: RUS defines “high-speed” broadband as a service of 5 Mbps of upstream plus downstream. A service that offers 4 Mbps downstream and 1 Mbps upstream is therefore a 5 Mbps service under RUS’ formula.)

RUS will aggregate the responses from all existing service providers to determine if 50 percent of the homes in the proposed service area do not have access to high-speed broadband. The number of actual subscribers is no longer part of any RUS test, but since RUS has again asked for that type of information it may still consider it. Unlike the National Telecommunications and Information Administration’s (NTIA’s) second round response process, respondents will again be required to use the mapping tool for each response.

Another difference in this round (and from NTIA’s broadband stimulus program in both rounds) is that proposed service areas are not necessarily composed of entire census areas. If an applicant has chosen to draw a service area without precise correlation to census areas, ZIP codes or other such boundaries, existing service providers may have a more difficult time determining how many homes they pass within the area that the applicant has mapped. The Public Notice list has a link for census blocks covered by the application, but it only lists census blocks with centers located within the proposed service area. Thus, the entirety of the listed census blocks are not necessarily covered by the application, and there may be some additional census areas not listed that are partly covered by the application.

RUS has also posted an Application Directory with summaries of the 776 proposed Round 2 BIP projects. However, this directory only lists the states within which each applicant is incorporated and not the service areas that are set forth in the Public Notice Response portal.

Davis Wright Tremaine is actively participating in the broadband stimulus funding process. If you have questions, please contact the attorneys listed above or your Davis Wright Tremaine attorney.

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