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AN ACT relating to utility pole replacement. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
ď˘Section 1. KRS 224A.1123 is amended to read as follows: 3
(1) The General Assembly hereby finds and declares that: 4
(a) A rural infrastructure improvement fund, and a program to administer the 5
fund, is necessary to further the Commonwealth's goal to expand and 6
accelerate access to broadband service throughout the entire Commonwealth; 7
and 8
(b) Supporting the replacement of utility poles will provide benefits to Kentucky 9
residents by: 10
1. Facilitating the construction of broadband networks; 11
2. Minimizing the potential for disputes between broadband providers and 12
utility pole owners that could otherwise delay deployment; 13
3. Improving the resiliency and longevity of broadband infrastructure; and 14
4. Addressing needs for broadband investment not yet fully met by existing 15
programs. 16
(2) As used in this section: 17
(a) "Application" means an application made under subsection (4) of this section 18
for eligible pole replacement costs; 19
(b) "Eligible pole replacement": 20
1. Means the removal of an existing utility pole and replacement with a 21
new utility pole[ in an unserved area] in order to accommodate the 22
attachment of facilities to be used, in whole or in part, by a retail 23
provider to provide qualifying broadband service access to residences or 24
businesses within an unserved or underserved area; and 25
2. Does not include the removal and replacement of a utility pole in order 26
to accommodate facilities used only for the provision of wholesale 27 UNOFFICIAL COPY 24 RS BR 1571
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broadband or data transport service, where the owner of the facilities, or 1
its affiliate, does not use the facilities to provide qualifying broadband 2
services directly to residences or businesses; 3
(c) "Eligible pole replacement costs": 4
1. Means: 5
a. The actual and reasonable costs paid or incurred to perform an 6
eligible pole replacement; 7
b. The amounts of any expenditures to remove and dispose of the 8
existing utility pole, to purchase and install a replacement utility 9
pole, or to transfer any existing facilities to the new pole; and 10
c. The costs of reimbursing another party for the costs of performing 11
an eligible pole replacement, when paid or incurred by the person 12
responsible for the costs; and 13
2. Does not include: 14
a. Costs paid or incurred to perform an eligible pole replacement by a 15
party who is not responsible for those costs, and which are charged 16
or passed along to the responsible party; 17
b. Costs for which the party incurring or paying the costs separately 18
has received or is entitled to receive reimbursement under the 19
terms of a state or federal grant program for the deployment of 20
broadband facilities; and 21
c. The receipt of a state or federal grant where the pole replacement 22
costs, for which reimbursement is requested, exceed the pole 23
replacement costs that were reasonably anticipated at the time of, 24
or on which the amount of, the other support funding was 25
predicated. 26
Costs are considered separately reimbursed for purposes of this paragraph if 27 UNOFFICIAL COPY 24 RS BR 1571
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the amount of an award under another state or federal broadband program 1
included consideration, by the awarding entity, of the pole replacement costs 2
by the applicant; 3
(d) "Fund" means the rural infrastructure improvement fund established by 4
subsection (3) of this section; 5
(e) "Pole owner" means any person or entity that owns or controls a utility pole; 6
(f) "Program" means the Kentucky Rural Infrastructure Improvement Program 7
established by subsection (4) of this section; 8
(g) "Qualifying broadband service" means a retail wireline broadband service 9
capable of delivering Internet access at speeds of at least one hundred (100) 10
megabits per second in both the downstream and upstream directions, and 11
with latency at a level sufficient to permit real-time, interactive applications; 12
and 13
(h) "Utility pole" means any pole used, in whole or in part, for any wire 14
communications or electric distribution, regardless of the owner or operator 15
of the pole. 16
(3) (a) There is created within the State Treasury a trust and agency account to be 17
known as the rural infrastructure improvement fund, consisting of moneys 18
appropriated by the General Assembly, federal funds, grants, and gifts. 19
(b) The fund shall be administered by the Office of Broadband Development and 20
all money deposited in the fund shall be used: 21
1. By the office to provide reimbursements to qualified applicants under 22
the Rural Infrastructure Improvement Program established under 23
subsection (4) of this section; 24
2. For the purposes of covering the costs of program administration and 25
operation; and 26
3. In a manner consistent with federal law. 27 UNOFFICIAL COPY 24 RS BR 1571
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(c) Notwithstanding KRS 45.229, any moneys remaining in the fund at the close 1
of the fiscal year shall not lapse but shall be carried forward into the 2
succeeding fiscal year to be used for the purposes set forth in this section. 3
(d) Interest earned on money deposited to the credit of the fund shall be retained 4
in the fund and shall not lapse. 5
(e) Moneys deposited in the fund are hereby appropriated for the purposes in this 6
section. 7
(4) (a) There is hereby established the Kentucky Rural Infrastructure Improvement 8
Program for the purpose of expediting and facilitating the deployment of 9
broadband service to individuals, businesses, agricultural operations, and 10
community access points in unserved or underserved areas by reimbursing a 11
portion of eligible pole replacement costs incurred by eligible applicants. 12
(b) The office shall administer and provide staff assistance for the program and 13
shall be responsible for receiving, reviewing, and approving applications for 14
pole reimbursements. 15
(c) The office shall award pole reimbursements from moneys in the fund created 16
by subsection (3) of this section until all moneys in the fund are exhausted. 17
(d) No later than September 1, 2022, the office shall: 18
1. Promulgate administrative regulations under KRS Chapter 13A 19
necessary for the administration of this section; 20
2. Publish an application for pole replacement reimbursements that shall 21
require: 22
a. Information sufficient to establish the number, cost, and eligibility 23
of eligible pole replacements that qualify for reimbursement; 24
b. Documentation sufficient to establish that the claimed eligible pole 25
replacements have been completed, including receipts verifying 26
the amount of eligible pole replacement costs paid by the 27 UNOFFICIAL COPY 24 RS BR 1571
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applicant; 1
c. The amount of program reimbursement requested in the 2
application and any grant funding or accounting information 3
required to justify the amount of the request; 4
d. i. A statement that the costs for which reimbursement is 5
requested have not been reimbursed through any other state 6
or federal broadband grant program. 7
ii. If the applicant is a recipient of funding from another 8
program, the statement shall include an explanation of how 9
the costs for which reimbursement is requested exceed the 10
pole replacement costs on which the original award was 11
predicated or that were reasonably anticipated at the time of 12
the original award; 13
e. A notarized statement from an officer or agent of the applicant that 14
the contents of the application are true and accurate and that the 15
applicant accepts the requirements of this section and any 16
promulgated administrative regulations as a condition of receiving 17
an award of program reimbursement; and 18
f. Any other information necessary for the office to comply with any 19
conditions on federal funding used in connection with the 20
program; and 21
3. Publish and maintain on its website[Web site]: 22
a. Statistics on the number of applications received, processed, and 23
rejected by the office under the pole replacement program; 24
b. Statistics on the size, number, and status of reimbursements 25
awarded by the office under the pole replacement program, 26
including the pole owners and broadband providers receiving 27 UNOFFICIAL COPY 24 RS BR 1571
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reimbursements; and 1
c. The amount of money remaining in the fund. 2
(e) 1. An applicant who incurs or pays the costs of an eligible pole 3
replacement to accommodate broadband facilities consistent with this 4
section may apply to the office for reimbursement, including but not 5
limited to a pole owner who: 6
a. Has received written notification from a retail provider of 7
qualifying broadband service of the provider's planned route for 8
the deployment of qualifying broadband service to an unserved 9
or underserved area; and 10
b. Replaces a utility pole along the planned route that would not 11
otherwise need to be replaced except to accommodate the 12
attachment of facilities to be used, in whole or in part, by a retail 13
provider to provide qualifying broadband service access to 14
residences or businesses within the unserved or underserved 15
area. 16
2. If a retail provider of qualifying broadband service changes its 17
planned deployment route so that a replaced utility pole is not on the 18
provider's actual deployment route after the utility pole owner has 19
received reimbursement from the fund for replacing the utility pole, 20
the retail provider shall reimburse the fund for the amount that was 21
paid to the utility pole owner. 22
(f) As a condition of receiving reimbursement under this subsection, an applicant 23
shall: 24
1. Certify its compliance with the requirements of this section; 25
2. Agree to comply with any requirements that the office determines to be 26
necessary conditions on federal funding used in connection with the 27 UNOFFICIAL COPY 24 RS BR 1571
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program; 1
3. Agree to refund, with interest at the applicable federal funds rate as 2
specified by KRS 355.4A-506, to the fund, any reimbursements or 3
portions of reimbursements received from the fund under this 4
subsection, if the office finds, upon substantial evidence and after notice 5
and opportunity to respond, that the recipient materially violated any of 6
the requirements agreed to under this section; 7
4. Agree that no funds awarded by the program will be used to meet any 8
cash match requirement under any other broadband program 9
administered by the Commonwealth or one (1) of its subdivisions; 10
5. Agree to submit reports as the office may require regarding broadband 11
deployment facilitated by the program, which may include reports 12
demonstrating that an application that has received a federally funded 13
award is meeting or exceeding buildout requirements contained in that 14
award; and 15
6. Agree to not include in any rates or fees charged for its services any 16
eligible pole replacement costs that were reimbursed by the program, 17
paid for by a broadband provider, or funded by another grant source. 18
(g) 1. If the necessary information is not otherwise reasonably available to the 19
applicant, the applicant may request a pole owner performing an eligible 20
pole replacement to provide the number and costs of the pole 21
replacements, receipts verifying the amount of pole replacement costs 22
paid by the applicant, and confirmation that the pole replacement costs 23
were incurred to accommodate the applicant's attachment and not due to 24
some other reason. 25
2. In the event the office requires additional information from an applicant 26
following the submission of an application to confirm the eligibility of 27 UNOFFICIAL COPY 24 RS BR 1571
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costs in an application that is in the possession of the pole owner and not 1
otherwise reasonably available to the applicant, the applicant may also 2
request that the pole owner assist with providing the information as 3
requested by the office. 4
3. A pole owner shall coordinate in good faith to provide the information 5
to the applicant, and may require reimbursement from the broadband 6
provider of its actual and reasonable administrative expenses in 7
connection with the coordination, which shall not exceed five percent 8
(5%) of the eligible pole replacement costs. 9
4. Administrative costs that a broadband provider reimburses to a pole 10
owner under this subsection are not eligible for reimbursement from the 11
fund as eligible pole replacement costs. 12
(h) Within sixty (60) days of receipt of a completed application establishing the 13
eligibility of costs for reimbursement, and to the extent that moneys are 14
available in the fund, the office shall award the lesser of: 15
1. Five thousand dollars ($5,000) for each pole replaced; or 16
2. Fifty percent (50%) of the total amount incurred or paid by the applicant 17
for eligible pole replacement costs. 18
(i) Any application pending at the exhaustion of the moneys in the fund shall be 19
deemed denied but may be refiled if sufficient moneys are later made 20
available in the fund. 21
(j) No later than one (1) year after the fund receives moneys for the purpose of 22
providing pole replacement reimbursements to qualified applicants, the 23
authority shall, on an annual basis, cause to be conducted an independent 24
audit of the office's administration of the fund for compliance with the 25
requirements of this section. This audit may be performed by either the 26
Auditor of Public Accounts or a certified public accountant in conjunction 27 UNOFFICIAL COPY 24 RS BR 1571
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with the annual audit of the authority. The authority shall comply with the 1
provisions of KRS 45.149 before entering into a contract for audit services 2
with a certified public accountant. 3
(5) A broadband provider's use of funds reimbursed under this subsection to pay 4
eligible pole replacement costs shall have no effect on the subsequent ownership of 5
any replacement pole purchases and installed by a pole owner using the funds. 6