Oklahoma Administrative Code, Title 93 — Broadband Governing Board

Chapter 1 Administrative Operations

Subchapter 1 General Provisions

Okla. Admin. Code § 93:1-1-1 Purpose

The rules of this Chapter describe the organization and the administrative operation of the Broadband Governing Board ("Board"), the procedures for requests for rule changes and the procedures for the filing and prompt disposition of petitions for declaratory rulings as to the applicability of any rule or order of the Board, as required under the Administrative Procedures Act.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:1-1-2 Agency organization

(a) The Broadband Governing Board sets broadband expansion policy in the State to ensure that affordable, high-speed internet is available to all Oklahomans. The Board creates and implements an annual budget and grant incentive programs. Additionally, the Board oversees the development of the State Broadband Plan and broadband mapping, which describes how the state will achieve 95 percent high-speed internet coverage by June 2028.

(b) The Oklahoma Broadband Office ("Office") is charged with fulfilling the Board's mission of statewide broadband expansion by developing a comprehensive plan, managing grant applicants, processes, and procedures, making formal grant awards, and overseeing the subrecipients of the grants. This includes grant agreements, monitoring, compliance, and federal reporting requirements.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:1-1-3 Oklahoma Broadband Office

(a) The Oklahoma Broadband Governing Board and the Oklahoma Broadband Office are located at 301 NW 63rd St., Suite 200, Oklahoma City, OK 73116.

(b) General office hours are from 8:00 a.m. to 5:00 p.m. each day, except Saturday and Sunday, and any legal holiday established by statute or proclamation of the Governor.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:1-1-4 Availability of records

(a) Document location. All rules and other written statements of policy or interpretations formulated, adopted, or used by the Board in the discharge of its functions and all final orders, decisions and opinions will be made available for public inspection at the principal office during regular office hours.

(b) Official records. Copies of official records of the Board may be made and certified by the Executive Director or his designee according to the fee schedule enacted by the Board. Any records or material in the Board's offices that are protected from disclosure by state law shall not be released.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:1-1-5 Petitions for adoption, amendment, or repeal of a rule

(a) Definitions. The following words and terms, when used in this Section, shall have the following meaning:

(1) "Rule" means any agency statement or group of related statements of general applicability and future effect that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of the agency. See the Administrative Procedures Act at 75 O.S. § 250.3.

(2) "Rulemaking" means the process employed by an agency for the formulation of a rule.

(3) "Submission of a petition" means receipt of a petition by the Board in accordance with the requirements of (b) of this Section.

(b) Petitions. Any person may initiate an informal proceeding for the purpose of requesting the Board to promulgate, amend, or repeal a rule in this Title. An informal proceeding to request rulemaking in accordance with the provisions of this Section shall be initiated by filing a petition in accordance with all of the following requirements:

(1) Petitions shall be submitted in writing and filed with the Oklahoma Broadband Governing Board. The petition shall meet all of the following requirements:

(A) The petition shall state a description of the alleged necessity or basis for the requested change;

(B) The petition shall describe any potential conflicts with any existing statute or regulation that would result from the proposed rulemaking action requested;

(C) The petition shall include citations to all statutory provisions, if any, which provide authority for the Board to promulgate, amend, or repeal the rule;

(D) The petition shall be signed by the petitioner or an authorized representative of the petitioner; and

(E) The petition shall state the name, address, telephone number, and email address of the petitioner or an authorized representative of petitioner.

(2) Upon receipt by the Board, the petition will be stamped to show the date of submission, and the Board shall review the petition for compliance with all of the provisions of this Section. If the petition complies with all provisions of (b) of this Section, the Board may set the petition for consideration by the Board at the next regular meeting of the Board, or at a subsequent meeting if the petition is not received until after the agenda for the next meeting has already been set.

(c) Review and consideration of petitions. Petitions for adoption, amendment, or repeal of a rule in accordance with the provisions of this Section shall be considered by the Board in accordance with the following provisions:

(1) If the Board approves further consideration of the proposed change, the decision shall be reflected in the meeting minutes of the Board. Within five (5) business days of the date of the meeting, written notification will be mailed to petitioner that such proposal will be formally considered for adoption, amendment, or repeal, provided that the process for rule adoption, amendment, or repeal shall be conducted in accordance with the requirements of the Administrative Procedures Act.

(2) In the event the Board determines that the proposal or request should not receive further consideration, the decision shall be reflected in the minutes of the Board. Within five (5) business days of the date of the meeting, written notification of the denial of the petition will be mailed to petitioner.

(3) In the event the Board fails to decide whether or not to take action on the petition within thirty (30) days of the date of submission of the petition, the petition shall be deemed to have been denied in accordance with the provisions of 75 O.S. § 305.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:1-1-6 Procedures for declaratory rulings

(a) Definitions. The following words and terms, when used in this Section, shall have the following meaning:

(1) "Declaratory ruling" means an informal declaration as to the applicability of a rule or order in an individual case for the purpose of providing a petitioner with a definitive response to a question about an ambiguity in the law as necessary to allow a petitioner to ascertain legal obligations and comply accordingly.

(b) Petitions for declaratory ruling. Any person affected by a rule adopted by the Oklahoma Broadband Governing Board set forth in this Title or an order issued by the Board may petition for a declaratory ruling as to the applicability of a specific rule or order in a specified set of circumstances involving petitioner. Petitions for a declaratory ruling shall be submitted in accordance with the following procedures:

(1) The petition must be in writing and submitted to the Oklahoma Broadband Governing Board;

(2) The petition shall specifically identify the rule in question by citation to the Oklahoma Administrative Code;

(3) The petition shall pose the specific issue(s) to be answered by the Oklahoma Broadband Governing Board;

(4) The petition shall state clearly and with specificity all factual and legal grounds in support of petitioner's interpretation of the rule or order and shall include:

(A) An allegation of all facts upon which the declaratory ruling is based; and

(B) Copies of all documentation cited by petitioner in support of petitioner's claim attached to the petition;

(5) The petition shall be signed by the petitioner or an authorized representative of the petitioner; and

(6) The petition shall state the name, address, telephone number, and email address of the petitioner or an authorized representative of petitioner at which all notices required by this Section shall be served.

(c) Review of a petition for declaratory ruling. Upon receipt by the Board, the petition will be stamped to show the date of submission, and the Board shall promptly notify the petitioner, the agency's legal counsel, and any other interested parties of the date of the board meeting at which the petition has been set for initial review by the Board. The date set for initial review shall be at least ten (10) calendar days from the date of receipt of the petition by the Board.

(d) Initial review of petition. Upon preliminary review of the petition, the Board may take one of the following actions:

(1) The Board may consider the merits of the petition and issue a ruling at the meeting;

(2) The Board may dismiss the petition on one or more of the following grounds:

(A) The petition was not filed in accordance with the requirements of this Section; or

(B) The request for a declaratory ruling stated in the petition is more appropriately handled through the agency rulemaking process in accordance with the provisions of the Administrative Procedures Act; or

(3) The Board may order a hearing on the matter and specify a date at which petitioner, counsel for the agency and any other individuals or entities deemed interested parties by the Board may present oral argument on the issues raised in the petition. The Board shall prescribe the amount of time allotted for oral argument.

(e) Declaratory ruling. At the conclusion of the presentation of the matter, the Board may render a decision on the petition or continue the meeting for further deliberation at a later date. Upon rendering a decision, a written decision memorializing the Board's decision shall be issued and signed by the Chairman of the Board, and a copy of the decision shall be mailed to Petitioner via certified mail within ten (10) calendar days of the date the decision is rendered.

(f) Judicial review. A declaratory ruling or refusal to issue such ruling, shall be subject to judicial review in the manner provided for review of decisions in individual proceedings set forth in the

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Chapter 10 Broadband Governing Board Grant Program

Subchapter 1 General Provisions

Okla. Admin. Code § 93:10-1-1 Purpose

The purpose of the Broadband Governing Board Grant program is to use federal funds distributed to the State of Oklahoma pursuant to the American Rescue Plan Act, Pub. L. No. 117-2 (Mar. 11, 2021) ("ARPA") and/or the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (Nov. 15, 2021) ("IIJA") to ensure that affordable, high-speed internet is available to all Oklahomans. The Broadband Governing Board ("BGB") is a pass-through entity through which federal funding will be further distributed to grantees for specific broadband expansion projects, including, but not limited to, creating a State Broadband Plan, broadband mapping, and capital improvements to broadband infrastructure. See 74. O.S. § 9202.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-1-2 Definitions

When used in this chapter, the following words or terms shall have the following meaning, unless the context clearly indicates otherwise:

"ACP" means the Affordable Connectivity Program.

"ARPA" means the American Rescue Plan Act, Pub. L. No. 117-2 (Mar. 11, 2021), as amended.

"BEAD" means Broadband Equity, Access, and Deployment.

"Board" means the Broadband Governing Board.

"C.F.R." means Code of Federal Regulations, available at https://www.ecfr.gov

"Council" means the Broadband Expansion Council.

"DEA" means Digital Equity Act.

"Grantee" means a recipient of federal funds awarded through the Broadband Governing Board Grant program, regardless of whether the recipient is a "pass-through entity" or "subrecipient."

"FCC" means the Federal Communications Commission.

"IIJA" means the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (Nov. 15, 2021), as amended.

"NTIA" means the National Telecommunications and Information Administration.

"OBO" means the Oklahoma Broadband Office.

"OMES" means Office of Management and Enterprise Services.

"Pass-through entity" or "PTE" means a non-federal entity that provides a subaward to a subrecipient to carry out part of a federal program, consistent with the definition at 2 C.F.R., § 200.1.

"SAM" means System for Award Management.

"Subrecipient" means an entity that receives a subaward from a pass-through entity to carry out part of a federal award, but does not include an individual that is a beneficiary of such award, consistent with the definition at 2 C.F.R., § 200.1.

"U.S. Treasury" means United States Department of the Treasury.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Subchapter 3 Program Administration

Okla. Admin. Code § 93:10-3-1 System for Award Management ("SAM")

All eligible grantees must have an active registration with SAM.gov pursuant to Part 25 of Title 2 of the C.F.R. This registration must be active prior to the submission of mandatory reporting.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-2 Award process

(a) Grant applicants will submit applications through an online intake portal. A Risk Assessment will be done. Submission of a final application does not guarantee the award of a grant.

(b) The BGB may assign preference to a class of applicants for any application.

(c) At the judgment of the BGB, applications may be evaluated and scored by OBO employees, content experts, proposal review panels or any combination of employees, experts, or review panels. Evaluation results and recommendations shall be provided to the directors for each application reviewed.

(d) Applications approved by the OBO staff will then be presented to the BGB for final approval.

(e) Applications submitted to the agency remain confidential until a decision is made by the BGB.

(f) The final decision to award shall be made at the sole discretion of the BGB, based upon the evaluation and scoring performed on the application.

(g) All applicants will receive written notification of final award status.

(h) Disbursement and reporting policies and cadences will be determined by the completed risk assessment and will also include the federal rules and regulations set forth for each grant program

(i) Approved applications will then enter a grant agreement with the OBO.

(j) The BGB may use the contents of applications in conjunction with reporting duties of the BGB and OBO.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-2.1 [Effective until 9/14/2024] ARPA Overbuild Prevention Contest Process

(a) Purpose.

(1) The Oklahoma Broadband Office, at the direction of the Broadband Governing Board, is administering a statewide competitive grant program under the American Rescue Plan Act - State and Local Fiscal Recovery Fund (ARPA-SLFRF). Applicants submit proposed projects through the OBO's ARPA-SLFRF portal during the project submission period. An Overbuild Prevention Contest Process will follow, allowing ISPs to contest any of the submitted proposed projects, according to this process.

(2) This Overbuild Prevention Contest Process will serve as an opportunity for providers with existing infrastructure within the proposed project areas to submit the addresses that are already served or will be served within twelve (12) months, or up to eighteen (18) months if extended by the OBO, of the close of the project submission period. The Overbuild Prevention Contest Process will allow for the program to meet the needs of unserved and underserved Oklahomans while also ensuring that the selected projects for the awards do not conflict with the existing services or services to be provided within twelve (12) months, or up to eighteen (18) months if extended by the OBO, of the close of the project submission period, or with grant program funds awarded by other governmental entities that cannot be matched with ARPA-SLFRF funding.

(b) Definitions. The following words or terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise:

(1) "Address" or "Addresses" or "BSL" means a broadband serviceable location as determined by the Federal Communication Commission's National Broadband Map.

(2) "Anchor Institution" or "Community Anchor Institution" or "CAI" means an entity, such as a school, library, health clinic, health center, hospital or other medical provider, public safety entity, institution of higher education, public housing organization, or community support organization that facilitates greater use of broadband service by vulnerable populations, including, but not limited to, low-income individuals, unemployed individuals, children, the incarcerated, and aged individuals.

(3) "ARPA-SLFRF portal" means the online application tool administered by the OBO for submission of proposed projects.

(4) "Applicant" means an ISP that submits a valid Proposal for grant funding to the OBO during the Project submission period.

(5) "Board" or "BGB" means the Oklahoma Broadband Governing Board.

(6) "Contest" means a submission of all required information to the OBO by an ISP to contest a Proposed Project.

(7) "Contest Period" means the timeframe set by the OBO for ISPs to contest one or more Proposed Projects.

(8) "Contested Applicant" means an ISP whose Proposed Project is being contested by another ISP.

(9) "Contester" means an entity that provides broadband service, including, but not limited to, a for-profit, a non-profit, cooperative, local government, municipality or tribal entity. submitting a Contest.

(10) "CostQuest Fabric I.D." means the identification that is assigned by CostQuest to each broadband serviceable location.

(11) "Gbps" means gigabits per second.

(12) "Grant Program" or "Program" means the statewide competitive grant process administered by the OBO under the American Rescue Plan Act - State and Local Fiscal Recovery Fund (ARPA-SLFRF).

(13) "Internet Service Provider" or "ISP" means an entity that provides broadband service, including, but not limited to, a for-profit, a non-profit, cooperative, local government, municipality or tribal entity.

(14) "Partnership" refers to an ISP or multiple ISPs that partner together on a proposed project.

(15) "Proposed Project" or "Proposal" means a complete submission for grant funding provided by an Applicant to the OBO pursuant to Program requirements.

(16) "Project Area" means the addresses covered by a Proposed Project.

(17) "Project Submission Period" means the timeframe set by the OBO to accept Proposed Projects.

(18) "OBO" means the Oklahoma Broadband Office.

(19) "Overbuild Prevention Contest Process" means the challenge process detailed in this section by which a Contester may contest one or more Proposed Projects.

(20) "Map" means the Federal Communications Commission National Broadband Map which will be used to determine Broadband Serviceable Locations.

(21) "Mbps" means megabits per second.

(c) Submitting a Contest.

(1) One Contest should be submitted for each Proposed Project. In the event that multiple Proposed Projects include an identical BSL, a Contester must submit a Contest for each Project.

(2) To submit a Contest, a Contester shall provide the OBO, in a manner determined by the OBO as set forth in the Notice of Funding Opportunity, with evidence of the following:

(A) That all or part of a Proposed Project Area is:

(i) Currently served at a minimum of 100/20 Mbps scalable to 100/100 Mbps; or

(ii) Will be under construction for broadband service within twelve (12) months, or up to eighteen (18) months if extended by the OBO, of the Project Submission Period; or

(B) The ISP has received funding from another funding source (state, federal, tribal, or private) for broadband deployment in the suggested project area that cannot be paired with or matched with Grant Program ARPA funding.

(C) A copy of the signed affidavit as provided in subsection (g) of this section, certifying that the Contest is accurate and true.

(D) Within fourteen (14) calendar days of the close of the portal submission period, the OBO shall publish on its website, broadband.ok.gov, the proposed projects' unserved and underserved areas and the proposed broadband internet speeds for each potential application submitted.

(d) Burden of Proof.

(1) For a Contest submitted pursuant to subsection (c) of this section to be deemed eligible for consideration, the Contester must meet the burden of proof by submitting the Contest in the manner and form prescribed by the OBO.

(2) Contests that are not submitted in the manner and form prescribed by the OBO will not be considered.

(e) Processing a Contest.

(1) Within five (5) business days following the date of a valid Contest being submitted to the OBO, the Contested Applicant which submitted the Proposed Project shall be provided copies of the Contest materials in a manner determined by the OBO.

(2) Within five (5) business days of receiving Contest materials from the OBO, the Applicant shall respond to the Contest and acknowledge receipt of same in a manner determined by the OBO.

(3) Upon receiving a completed response to the Contest from the Contested Applicant, the OBO shall resolve the dispute within twelve (12) business days.

(f) Resolving a Contest.

(1) A Contest will be resolved by either:

(A) A determination that the Contest is unsuccessful and a declaration of formal acceptance of the Proposed Project as eligible for funding. The OBO will notify both the Contester and the Applicant of this resolution; or,

(B) A determination that the Contest is successful. The OBO will notify the Contester and the Applicant of this resolution.

(i) The OBO shall allow a successfully Contested Applicant to submit within five (5) business days of such notification a revised Proposed Project that excludes successfully contested addresses within the original Proposed Project Area.

(ii) Upon receipt of a revised Proposed Project, the OBO may elect to determine the Project is eligible for funding.

(2) Upon processing all Contests, the OBO shall post on its website a list of successful Contests and the Proposed Project Areas affected by said Contests.

(g) Template Contest Affidavit.

(1) The signed affidavit required by subsection (c) of this section shall be as follows:

(2) I,, certify that I am duly authorized by the Contester to submit this Contest and included materials; that the Contester has the capacity to provide minimum actual speeds of 100 Mbps downstream and 20 Mbps upstream for households and 1 Gbps symmetrical for Anchor Institutions; that if it is a proposed project to be completed in twelve (12) months, or up to eighteen (18) months if extended by the OBO, it will provide service of at least 100/20 Mbps for households and 1 Gbps symmetrical for Anchor Institutions and scalable to equal or higher speeds than the project area it is contesting. In the event of a Contest that involves a Contester's plans to deploy broadband in the proposed area, and those addresses are not under construction within twelve (12) months, or eighteen (18) months if extended by the OBO, that the broadband infrastructure is designed to meet the identified needs of the contested addresses, and that all the information submitted as part of this Contest is true and correct to the best of my knowledge.

(A) Signature:

(B) Print Name:

(C) Title:

(D) Contester:

(E) Email:

History

• Adopted by Oklahoma Register, Volume 41, Issue 5, November 15, 2023, eff. 10/12/2023, exp. 9/14/2024 (Emergency)

Okla. Admin. Code § 93:10-3-2.2 [Effective until 9/14/2024] CPF overbuild prevention contest process

(a) Purpose.

(1) The Oklahoma Broadband Office, at the direction of the Broadband Governing Board, is administering a statewide competitive grant program under the American Rescue Plan Act - Capital Projects Fund (ARPA-CPF). Applicants submit Proposed Projects through the OBO's ARPA-CPF portal during the Project Submission Period. An Overbuild Prevention Contest Process will follow, allowing ISPs to contest any of the submitted proposed projects, according to this process.

(2) This Overbuild Prevention Contest Process will serve as an opportunity for providers with existing infrastructure within the Proposed Project Areas to submit the addresses that are already served, will be served via an enforceable commitment, or will be served within twelve (12) months, or up to eighteen (18) months if extended by the OBO, of the close of the Project Submission Period. The Overbuild Prevention Contest Process will allow for the program to meet the needs of unserved and underserved Oklahomans while also ensuring that the selected projects for the awards do not conflict with the existing services or services to be provided within twelve (12) months, or up to eighteen (18) months if extended by the OBO, of the close of the Project Submission Period, or with Grant Program funds awarded by other governmental entities that cannot be matched with ARPA-CPF funding.

(b) Definitions. The following words or terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise:

(1) "Address" or "Addresses" or "BSL" or "Location" means a structure where Broadband Service could be installed (i.e., a Broadband Serviceable Location (BSL) as represented in the National Broadband Map. A location that is not in the Broadband Serviceable Location Fabric is an ineligible location even if a fabric challenge is pending with the FCC or the applicant provides evidence of the location through latitude and longitude data. Unbuilt parcels, adjacent outbuildings, and other non-BSL structures are considered ineligible locations for the purpose of this grant.

(2) "Anchor Institution" or "Community Anchor Institution" or "CAI" means an entity, such as a school, library, health clinic, health center, hospital or other medical provider, public safety entity, institution of higher education, public housing organization, or community support organization that facilitates greater use of Broadband Service by vulnerable populations, including, but not limited to, low-income individuals, unemployed individuals, children, the incarcerated, and aged individuals.

(3) "Applicant" means an ISP that submits a valid Proposal for grant funding to the OBO during the Project submission period.

(4) "ARPA-CPF Portal" means the online application tool administered by the OBO for submission of Proposed Projects.

(5) "Board" or "BGB" means the Oklahoma Broadband Governing Board.

(6) "Broadband Service" means internet service that meets the following criteria:

(A) Is a wireline or fixed wireless service that reliably provides two-way data transmission with speeds of at least 100 Mbps for download transmission and 100 Mbps for upload transmission.

(B) For locations where 100 Mbps symmetrical service is not feasible, Broadband Service may include service that reliably provide speeds of at least 100 Mbps download and 20 Mbps upload and is scalable to 100 Mbps download and 100 Mbps upload.

(C) Broadband Service does not include a commercial mobile radio (cellular) service or internet service from a satellite connection.

(7) "Business Location" means the definition set by U.S. Department of Treasury, consistent with FCC guidance, as a non-residential structure on a property without residential locations that would expect to demand internet access services.

(8) "Community Anchor Institution Location" means the definition set by the U.S. Department of Treasury, consistent with FCC guidance, of an entity, such as a school, library, health clinic, health center, hospital or other medical provider, public safety entity, institution of higher education, public housing organization (this term is used broadly and includes any public housing agency, HUD-assisted housing organizations or Tribal housing organization), or community support organization that facilitates greater use of Broadband Service by vulnerable populations, including, but not limited to, low-income individuals, unemployed individuals, children, the incarcerated, and aged individuals.

(9) "Contest" means a submission of all required information to the OBO by an ISP to contest a Proposed Project.

(10) "Contest Period" means the timeframe set by the OBO for ISPs to contest one or more BSL's within a Project Area.

(11) "Contested Applicant" means an ISP whose Proposed Project Area is being contested by another ISP.

(12) "Contester" means an entity that provides Broadband Service, including, but not limited to, a for-profit, a non-profit, cooperative, local government, municipality or tribal entity submitting a Contest.

(13) "CostQuest Fabric I.D." means the identification that is assigned by CostQuest to each Broadband Serviceable Location.

(14) "Enforceable Funding Commitment" means a Location that has been awarded state or federal funding to build or improve infrastructure to provide a wireline connection that reliably delivers at least 100 Mbps of download speed and 20 Mbps of upload speed.

(15) "Existing Federal Commitment" means a Proposed Project Area is considered "ineligible" if at any point the federal government has awarded funding under a competitive process to support the deployment of Broadband Service to addresses within a Proposed Project Area. Addresses within a Proposed Project Areas that have received or have been designated to receive federal funding for the purposes stated above are considered ineligible.

(16) "Gbps" means gigabits per second.

(17) "Grant Program" or "Program" means the statewide competitive grant process administered by the OBO under the American Rescue Plan Act - Capital Projects Fund (ARPA-CPF).

(18) "Internet Service Provider" or "ISP" means an entity that provides Broadband Service, including, but not limited to, a for-profit, a non-profit, cooperative, local government, municipality or tribal entity.

(19) "Mbps" means megabits per second.

(20) "National Broadband Map" or "Map" means the Federal Communications Commission National Broadband Map which will be used to determine Broadband Serviceable Locations.

(21) "OBO" means the Oklahoma Broadband Office.

(22) "Overbuild Prevention Contest Process" means the challenge process detailed in this section by which a Contester may contest one or more BSL's within a Proposed Project Area.

(23) "Partnership" means an ISP or multiple ISPs that partner together on a Proposed Project.

(24) "Planned Service" means broadband will be deployed at this location within twelve (12) to eighteen (18) months, either without an enforceable commitment or because a provider is building out broadband offering performance beyond the requirements of an enforceable commitment.

(25) "Proposed Project" or "Proposal" means a complete submission for grant funding provided by an Applicant to the OBO pursuant to Program requirements.

(26) "Proposed Project Area" or "Project Area" means the designated areas specified in a Proposed Project that are eligible to receive funding as determined by the most current FCC Broadband Map.

(27) "Project Submission Period" means the timeframe set by the OBO to accept Proposed Projects.

(28) "Residential Location" means the definition set by the U.S. Department of Treasury, consistent with FCC guidance, as a location that is or contains "housing units" or "group quarters" based on the U.S. Census Bureau's definition of these terms. A housing unit is defined by the Census Bureau as a house, an apartment, a mobile home, a group of rooms, or a single room that is occupied (or if vacant, is intended for occupancy) as separate living quarters, Separate living quarters are those in which the occupants live and eat separately from any other persons in the building and which have direct access from the outside of the building or through a common hall.

(c) Submitting a Contest.

(1) Within thirty (30) calendar days of the close of the Project Submission Period, the OBO shall make available on its website the Proposed Projects'Areas.

(2) If multiple Proposed Projects include an identical BSL, a Contester is only required to submit a single Contest applicable to each contested BSL.

(3) To submit a Contest, a Contester shall provide the OBO, in a manner determined by the OBO as set forth in the Notice of Funding Opportunity, with evidence of the following:

(A) That all or part of a Proposed Project Area is:

(i) Currently served at a minimum of 100/20 Mbps; or

(ii) Already covered by Planned Service or an Enforceable Funding Commitment; or

(iii) The ISP has received funding from another funding source (state, federal, tribal, or private) for broadband deployment in the suggested Project Area that cannot be paired with or matched with Grant Program ARPA funding; and

(B) A copy of the signed affidavit as provided in subsection (g) of this section, certifying that the Contest is accurate and true.

(d) Burden of Proof.

(1) For a Contest submitted pursuant to subsection (c) of this section to be deemed eligible for consideration, the Contester must meet the burden of proof by submitting the Contest in the manner and form prescribed by the OBO. The Contester must provide evidence supporting their claim, such as grant award notification, grant agreements, existing agreements to construct infrastructure that would provide reliable, wireline service of no less than 100/20 Mbps, or evidence that construction has started including but not limited to existing permits. Contests of plans to deploy broadband infrastructure must clearly and conclusively prove the claimed deployment plans.

(2) Contests that are not submitted in the manner and form prescribed by the OBO will not be considered.

(e) Processing a Contest.

(1) The OBO shall open a contest submission window of no less than five (5) business days.

(2) Within five (5) business days of the close of the contest submission window, the Contested Applicants which submitted the Proposed Project shall be notified of the Contest in a manner determined by the OBO.

(3) Contested applicants shall be given no less than five (5) business days from the date of notification to respond to the Contest in a manner determined by the OBO.

(4) Upon receiving a completed response to the Contest from the Contested Applicant, the OBO shall resolve the dispute within fifteen (15) business days.

(f) Resolving a Contest.

(1) Upon processing all Contests, the OBO shall publish on its website a list of successful Contests, and Applicants will be notified of their Proposed Project Areas affected by said Contests.

(2) The OBO shall allow a successfully Contested Applicant to submit within five (5) business days of such notification a revised Proposed Project that excludes successfully contested addresses within the original Proposed Project Area.

(g) Template Contest Affidavit.

(1) The signed affidavit required by subsection (c) of this section shall be as follows:

(2) I,___________________________________, certify that I am duly authorized by the Contester to submit this Contest and included materials; that the Contester has the capacity to provide minimum actual speeds of 100 Mbps downstream and 20 Mbps upstream for households and 1 Gbps symmetrical for Anchor Institutions; that if it is a Planned Service to be completed in twelve (12) months, or up to eighteen (18) months if extended by the OBO, it will provide service of at least 100/20 Mbps for households and 1 Gbps symmetrical for Anchor Institutions and scalable to equal or higher speeds than the Project Area it is contesting. The broadband infrastructure is designed to meet the identified needs of the contested Addresses, and that all the information submitted as part of this Contest is true and correct to the best of my knowledge.

(A) Signature:

(B) Print Name:

(C) Title:

(D) Contester:

(E) Email:

History

• Adopted by Oklahoma Register, Volume 41, Issue 14, April 1, 2024, eff. 2/29/2024, exp. 9/14/2024 (Emergency)

Okla. Admin. Code § 93:10-3-3 Capital expenditures

(a) In accordance with Section 35.6(b)(4) of the Treasury Final Rule, grantees expending $1,000,000 or more for capital expenditures related to the response to the COVID-19 public health emergency or its negative economic impacts, must provide the following written justification:

(1) A description of the specific harm or need to be addressed, and why the harm was exacerbated or caused by the public health emergency. The grantee may provide quantitative information on the extent and the type of harm, such as the number of individuals or entities affected.

(2) An explanation of why a capital expenditure is appropriate. For example, a grantee should explain why existing equipment or facilities, or policy changes or additional funding to pertinent programs or services, would be inadequate.

(3) A comparison of the proposed capital project against at least two (2) alternative capital expenditures and a demonstration of why the proposed capital expenditure is superior. Grantees should consider the effectiveness of the capital expenditure in addressing the harm identified and the expected total cost (including pre-development costs) against at least two (2) alternative capital expenditures.

(b) Funding for grantees expending $1,000,000 or more of a Broadband Governing Board Grant for capital expenditures will not be distributed until the complete written justification for capital expenditure as detailed above is received and approved by

(1) The BGB and OMES as to an ARPA grant, or

(2) The BGB as to an IIJA grant.

(c) If the capital expenditures amount to $10,000,000 or more, the written justification will also have to be submitted as part of regular reporting.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-4 Competitive bidding

(a) All projects, programs, services, or activities sponsored in whole or in part with federal funds will be purchased in accordance with the State Purchasing Director's Guide to Competitive Purchasing with ARPA and GEER II Funds, available at https://oklahoma.gov/content/dam/ok/en/omes/documents/ARPAGuide.pdf, and in accordance with applicable state and federal law, including but not limited to, 2 C.F.R., §§ 200.310 through .316 (property standards), and 2 C.F.R., §§ 200.317 through .327 (procurement standards).

(b) All grantees that utilize competitive bidding procurement methods must provide BGB with documentation of the process, including, but not limited to, copies of the bids received and justification of how a decision was reached to award a contract to a specific vendor.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-5 Reporting

(a) All grantees will appropriately maintain accounting records for compiling and reporting accurate, compliant financial data in accordance with generally accepted accounting standards and principles.

(b) All grantees of ARPA funds are required to submit Project and Expenditure Reports at the close of each month or quarter, in accordance with OMES' Subrecipient Monitoring Schedule. obligations expenditures, any applicable program income, and a description of the project demographic distribution. A template for the reports will be sent to all grantees, and the complete report shall be submitted to BGB within thirty (30) days of the end of the reporting period, or as otherwise directed by OMES or the BGB. The BGB, in turn, will submit all requested monthly and quarterly data to OMES to report as needed to the U.S. Treasury. These reports must include, at a minimum, the status of the overall project, a listing of obligations expenditures, any applicable program income, and a description of the project demographic distribution. A template for the reports will be sent to all grantees, and the complete report shall be submitted to BGB within thirty (30) days of the end of the reporting period, or as otherwise directed by OMES or the BGB. The BGB, in turn, will submit all requested monthly and quarterly data to OMES to report as needed to the U.S. Treasury.

(c) Pursuant to the State and Local Fiscal Recovery Funds ("SLFRF") Compliance and Reporting Guide, some grantees with larger projects may be required to submit an annual Recovery Plan Performance Report ("Recovery Plan"). The Recovery Plan must detail how the grantee will ensure program outcomes are achieved in an effective, efficient, and equitable manner. The Recovery Plan, if required, must be submitted annually to BGB and the U.S. Treasury; in addition, the Recovery Plan must be posted on the grantee's public-facing website.

(d) Final reporting will be due at the completion of the grant program.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-6 Labor reporting for construction projects

(a) For ARPA projects with over $10,000,000 in capital expenditures (based on total expected cost), the grantee shall submit labor reporting requirements, including, but not limited to:

(1) A Project Employment and Impact Report; and

(2) A Project Workforce Continuity Plan.

(3) These reports must be updated on a quarterly basis and submitted to BGB within thirty (30) days of the end of the reporting period.

(b) Projects funded entirely by ARPA dollars are not subject to the Davis-Bacon Act, Pub. L. No. 107-217 (Aug. 21, 2002), as amended; however, for projects that are funded in part by other federal dollars, grantees must determine whether their other funding source will require compliance with said act.

(c) Pursuant to the U.S. Treasury's Final Rule, and regardless of the expected cost for construction projects, grantees are expected to use strong labor standards, including project labor agreements and community benefits agreements that offer wages at or above the prevailing rate and include local hire provisions.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-7 Reimbursements

(a) Prior authorization. Grantees must receive written prior authorization from OBO before making purchases exceeding a prior authorization threshold amount. This amount will be based upon the grantee's risk assessment, as well as the overall scope of the proposed project. Grantees shall be informed in writing of the prior authorization threshold amount. A grantee shall upload the quote and a brief justification to the grant software designated by OBO for review and prior authorization by the OBO Grants Manager. Any purchase over the threshold the Broadband Governing Board Grant program. Amount that has not been prior authorized by the Grants Manager may not be reimbursed by the Broadband Governing Board Grant program.

(b) Invoices. In order to obtain reimbursement, grantees shall electronically send monthly invoice packets to the OBO Grants Manager. These packets must be received by OBO by the date prescribed by the Grant Agreement.

(1) Invoice packets must include the following:

(A) Signed receipts/invoices for all purchases;

(B) A brief justification of all expenses (1-2 sentences explaining how the purchase benefits the project); and

(C) Bidding documentation with justification for why the vendor was chosen.

(2) Invoices shall not be submitted to OBO for reimbursement before performance is completed by the vendor and accepted by the grantee, including physical receipt of goods. A grantee must sign the invoice or receipt to verify that the item or service has been received.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-8 Audit requirements

(a) The Grantee shall complete the Subrecipient Annual Report annually within forty-five (45) days after its fiscal year end, informing the State of Oklahoma whether a Single Audit is required for the prior fiscal year. If a Single Audit is required, the grantee shall submit a copy of the audit report to the State of Oklahoma within nine (9) months. A Single Audit is required if the grantee expends $750,000 or more in federal assistance during its fiscal year and must be conducted in accordance with Subpart F of Part 200 of Title 2 of the C.F.R.

(1) BGB will review the grantee's audit and issue any management decisions thereon within six (6) months of acceptance of the audit report by the Federal Audit Clearinghouse. Prior to issuing the management decision, BGB may request additional information or documentation from the grantee, including a request for auditor assurance related to the documentation, as a way of mitigating disallowed costs.

(2) After review of the audit, if it is determined that funds are owed to the State of Oklahoma, BGB may issue a management decision letter to the grantee. Pursuant to 2 C.F.R., § 200.521, the management decision will include:

(A) A clear statement of whether or not the audit finding is sustained, the reasons for the decision, and the actions the grantee is expected to take (including, for example, repaying disallowed costs, making financial adjustments, or taking other actions);

(B) A description of the appeals process available to the grantee; and

(C) The reference numbers the auditor assigned to each audit finding. A grantee aggrieved by an BGB management decision may initiate an appeal of that decision. In order to initiate an appeal, the grantee must complete and submit the appropriate form provided by BGB and made available on its website, within twenty (20) calendar days of the date of the management decision letter. If the form is not timely received, the BGB or the hearing officer designated by the BGB will issue a letter stating that the appeal will not be heard.

(3) Appeals of management decisions shall be conducted in accordance with OAC 93:10-5-3.

(b) Even if a grantee is exempt from federal audit requirements for a particular fiscal year, it shall still make its records available for review or audit by appropriate officials of the U.S. Treasury, OMES, BGB, and Government Accountability Office, as requested. Moreover, all "government entities," as such term is defined by law, shall comply with the applicable provisions of 74 O.S., § 212A relating to the Oklahoma State Auditor & Inspector's Office.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-9 Compliance with federal requirements

Grantees must establish and maintain effective internal controls over the federal award that provide reasonable assurance that they are managing the awards in compliance with federal statues, regulations, and the terms and conditions of the award. Some of the applicable federal compliance, reporting, and contract requirements include:

(1) American Rescue Plan Act, Pub. L. No. 117-2 (Mar. 11, 2021), as amended;

(2) Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (Nov. 15, 2021), as amended;

(3) U.S. Treasury Final Rule, Coronavirus State and Local Fiscal Recovery Funds, 87 Fed. Reg. 4338 (Jan. 27, 2022), and all other applicable federal rules, policies, guidance, procedures, and directives including reporting and compliance guidance, as amended;

(4) Uniform Guidance (Part 200 of Title 2 of the C.F.R.), including Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, as amended; and

(5) Single Audit Act Amendments of 1996, Pub. L. No. 104-156 (July 5, 1996), as amended.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-3-10 Grantee assurances

Grantee must agree to and abide by all state and federally required assurances, including those set out in Grantee's Grant Agreement.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Subchapter 5 Violations and Corrective Actions

Okla. Admin. Code § 93:10-5-1 Program violations

The State shall find that a violation of the Broadband Governing Board Grant program policies and procedures occurred under certain circumstances, including, but not limited to, the following:

(1) A grantee provided false or misleading information in proposed project applications and/or project reports;

(2) The requirements of federal statute, federal regulations, Oklahoma statute, or rules of BGB have not been met or have been violated;

(3) There is a significant deviation from the grant agreement;

(4) Significant corrective actions are necessary to protect the integrity of the project funds, and those corrective actions are not or cannot be put into effect, in the judgment of BGB staff, within a reasonable timeframe; or

(5) There has been a finding of fraud, waste, or mismanagement of any current or prior state- or federally-funded project.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-5-2 Corrective and remedial actions

After having determined that a program violation has occurred, BGB may take the following actions:

(1) BGB may adjust specific award conditions as needed, after providing notification consistent with the requirements in 2 C.F.R., § 200.208, including:

(A) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given performance period;

(B) Requiring additional, more detailed financial reports;

(C) Requiring additional project monitoring;

(D) Requiring the grantee to obtain technical or management assistance; or

(E) Establishing additional prior approvals; or

(2) If, after determining that noncompliance cannot be remedied by imposing additional conditions, BGB may, in accordance with 2 C.F.R., § 200.339:

(A) Temporarily withhold cash payments pending correction of the deficiency by the grantee or more severe enforcement action by the U.S. Treasury or OMES;

(B) Disallow all or part of the cost of the activity or action not in compliance;

(C) Wholly or partly suspend or terminate the grant;

(D) Recommend the U.S. Treasury initiate suspension or debarment proceedings under Part 180 of Title 2 of the C.F.R.;

(E) Withhold further federal awards for the project or program; or

(F) Take other remedies that are legally available.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Okla. Admin. Code § 93:10-5-3 Individual Proceedings

(a) In an individual proceeding, all parties shall be afforded an opportunity for hearing after reasonable notice.

(1) Notice of hearing shall be mailed to the last known address of all parties by registered mail at least fifteen (15) calendar days in advance of the hearing.

(2) The notice shall include the time, date, location and statement of the matters asserted.

(3) The notice shall also include a statement of the legal authority and jurisdiction under which the hearing is to be held and a reference to the particular sections of the statutes, rules, and grant agreement provisions involved.

(b) Hearings will be conducted by one of the following methods, as determined by the BGB:

(1) By the BGB; or

(2) By a hearing officer designated by the BGB.

(c) The hearing authority may require the furnishing of information; the attendance of witnesses; and the production of books, records, papers or other objects as may be necessary and proper for the purposes of the hearing.

(d) Any party to a proceeding may take depositions of witnesses in the same manner as provided by law in civil actions before courts of record and such depositions may be admitted into evidence subject to the right of objection at the time of the hearing in accordance with the law.

(e) The hearing shall be conducted in an orderly manner by the hearing examiner or Chairman of the BGB. The rules of evidence shall be those specified by Article II of the Oklahoma Administrative Procedures Act.

(f) The Chairman of the BGB, or hearing examiner, shall rule upon the admissibility of evidence and objections thereto, and shall rule upon other motions or objections arising in the course of the hearing.

(g) A record of the hearing, by means of tape recording or shorthand notes, will be made of all hearings conducted, unless the hearing authority designates otherwise. A transcript of the proceeding shall not be transcribed except upon written application and a cash deposit provided by the requesting party sufficient to pay for having the record transcribed.

(h) The record of the hearing and the file containing the pleadings will be maintained in a place designated by the Executive Director in counsel with the Chairman of the BGB.

(i) At any individual hearing not heard by a majority of the members of the BGB, the decision, if adverse to a party to the proceeding, shall not be made until a proposed order is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present brief and oral argument to the BGB. The proposed order shall be accompanied by a statement of the reasons therefore and for each issue of fact or law necessary to the proposed order, prepared by the person who conducted the hearing, or by one who has read the record. Exceptions must be filed with the Executive Director of the OBO within ten (10) calendar days of mailing the proposed order to the complainant. If exceptions are filed, the Executive Director shall set the time and the place for the BGB to consider the proposed order and the exceptions to it, and cause notice of such time and place to be mailed to the complainant. Such time shall not be less than twenty (20) calendar days after such notice is mailed. Briefs in support of exceptions must be filed with the BGB at least seven (7) calendar days before such hearing. The complainant may personally or through counsel, be present and present oral argument to the BGB in support of the exceptions. If no exceptions are filed, the BGB will consider the proposed order at its next regular or special meeting, or at such other time as is convenient to the BGB.

(j) A final order adverse to a party in an individual proceeding shall be in writing or stated in the record. A final order shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. A copy of the order shall be mailed forthwith to each party.

(k) All hearings before the BGB or its designated hearing officer shall be conducted in accordance with the Oklahoma Administrative Procedures Act, 75 O.S., §§ 250-323.

History

• Adopted by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023