Chapter 191 | Broadband Pole Replacement and Undergrounding

Section 191.01 | Definitions.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

As used in sections 191.01 to 191.45 of the Revised Code:

(A) "Affiliate" means a person or entity under common ownership or control with, or a participant in a joint venture, partnership, consortium, or similar business arrangement with, another person or entity pertaining to the provision of broadband service.

(B) "Broadband expansion program authority" means the entity created under section 122.403 of the Revised Code.

(C) "Broadband infrastructure" means facilities that are used, in whole or in part, to provide qualifying broadband service access to residences and businesses.

(D) "Mid-span pole installation" means the installation of, and attachment of broadband infrastructure to, a new utility pole that is installed between or adjacent to one or more existing utility poles or replaced utility poles to which poles broadband infrastructure is attached.

(E) "Pole owner" means any person or entity that owns or controls a utility pole.

(F) "Pole replacement" means the removal of an existing utility pole and replacement of that pole with a new utility pole to which a provider attaches broadband infrastructure.

(G) "Provider" means an entity, including a pole owner or affiliate, that provides qualifying broadband service.

(H) "Qualifying broadband service" means a retail wireline broadband service that is capable of delivering symmetrical internet access at download and upload speeds of at least one hundred megabits per second with a latency level sufficient to permit real-time, interactive applications.

(I) "Undergrounding" means the placement of broadband infrastructure underground, including by directly burying the infrastructure or through the underground placement of new ducts or conduits and installation of the infrastructure in them.

(J) "Unserved area" means an area in the state that is without access to fixed, terrestrial broadband service capable of delivering internet access at download speeds of at least twenty-five megabits per second and upload speeds of at least three megabits per second.

(K) "Utility pole" means any pole used, in whole or in part, for any wired communications or electric distribution, irrespective of who owns or operates such pole.

Last updated August 29, 2023 at 4:21 PM

Section 191.02 | Ohio broadband pole replacement and undergrounding program.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

There is hereby established the Ohio broadband pole replacement and undergrounding program within the department of development to advance the provision of qualifying broadband service access to residences and businesses in an unserved area by reimbursing certain costs of pole replacements, mid-span pole installations, and undergrounding.

The department shall administer and provide staff assistance for the program. The department shall be responsible for receiving and reviewing program applications and for sending completed applications to the broadband expansion program authority for final review and award of program reimbursements.

Last updated August 29, 2023 at 4:22 PM

Section 191.03 | Reimbursement award process.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) The department of development shall establish an administrative process to award program reimbursements under the Ohio broadband pole replacement and undergrounding program according to the provisions of sections 191.03 to 191.45 of the Revised Code.

(B) The broadband expansion program authority shall award program reimbursements after reviewing program applications and determining whether the applications meet the program's requirements for reimbursement.

Last updated August 29, 2023 at 4:35 PM

Section 191.05 | Determining unserved area for purpose of application.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

For the purposes of an application under the Ohio broadband pole replacement and undergrounding program, an area of the state shall be considered to be an unserved area, if one of the following applies:

(A) Under a program to deploy broadband service to unserved areas, a governmental entity has awarded a broadband grant for the area after determining the area to be an eligible unserved area under that program.

(B) The area has not been awarded any broadband grant funding, and the most recent mapping information published by the federal communications commission indicates that the area is an unserved area.

Last updated August 29, 2023 at 4:22 PM

Section 191.07 | Limitation on reimbursement awards.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) The broadband expansion program authority shall not award program reimbursements to an applicant under the Ohio broadband pole replacement and undergrounding program, if any of the following apply:

(1) The broadband infrastructure deployed is used only for the provision of wholesale broadband service and is not used by the applicant to provide qualifying broadband service directly to residences or businesses.

(2) A provider, other than the applicant, is meeting the terms of a legally binding commitment to a governmental entity to deploy qualifying broadband service in the unserved area.

(3) For program reimbursements that are funded by federal funds deposited in the pole replacement fund, the applicant fails to commit to compliance with any conditions required by the federal government in connection with the funds.

(B) The authority shall not award program reimbursements that are federally funded, if the reimbursements are inconsistent with federal requirements.

Last updated August 29, 2023 at 4:24 PM

Section 191.10 | Conditions for submitting application for reimbursement.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

In accordance with sections 191.10 to 191.45 of the Revised Code, a provider may submit an application for a program reimbursement under the Ohio broadband pole replacement and undergrounding program, if the provider has deployed qualifying broadband infrastructure in an unserved area and has paid any of the following costs in connection with the deployment of such broadband infrastructure:

(A) Pole replacement costs;

(B) Mid-span pole installation costs;

(C) Undergrounding costs.

The application shall be submitted on a form prescribed by the department of development.

Last updated August 29, 2023 at 4:25 PM

Section 191.13 | Application form and requirements.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) Not later than sixty days after the pole replacement fund created in section 191.27 of the Revised Code receives funds for the purpose of providing program reimbursements under the Ohio broadband pole replacement and undergrounding program, the department of development shall develop and publish an application form for the program and post the form on the department web site.

(B) An application shall include the following information:

(1) The number, cost, and locations of pole replacements, mid-span pole installations, and undergrounding for which reimbursement is requested;

(2) Documentation sufficient to establish that the pole replacements, mid-span pole installations, and undergrounding described in the application have been completed;

(3) Documentation sufficient to establish how the costs for which reimbursement is requested comport with the reimbursement requirements under the program;

(4) The reimbursement amount requested under the program;

(5) Documentation of any broadband grant funding awarded or received for the area described in the application;

(6) Accounting information that is sufficient to demonstrate that costs for which a program reimbursement is requested are eligible for a program reimbursement pursuant to division (C) of section 191.21 of the Revised Code, if the applicant has received any grant funding described in division (B)(5) of this section;

(7) A notarized statement, from an officer or agent of the applicant, that the contents of the application are true and accurate and that the applicant accepts the requirements of the program as a condition of receiving a program reimbursement;

(8) Any information necessary to demonstrate the applicant's compliance, and agreement to comply, with any conditions associated with the reimbursement awarded to the applicant;

(9) Any other information the department considers necessary for final review and for the award and payment of program reimbursements.

(C) If any federal funds are used for any awards under the program, the application form shall identify and describe any additional federal conditions required in connection with the use of the federal funds.

Last updated August 29, 2023 at 4:26 PM

Section 191.15 | Applicant agreement before receiving reimbursement.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) Before receiving a program reimbursement under the Ohio broadband pole replacement and undergrounding program, each applicant shall agree to do the following:

(1) Not later than ninety days after receipt of a program reimbursement, activate qualifying broadband service to end users utilizing the broadband infrastructure for which the applicant has received reimbursement for pole replacement, mid-span pole installation, or undergrounding costs;

(2) Certify the application's compliance with the requirements of sections 191.10 to 191.24 of the Revised Code;

(3) Comply with any federal requirements associated with the funding used by the broadband expansion program authority in connection with the award;

(4) Refund all or any portion of reimbursements received under the program as specified in section 191.30 of the Revised Code, if pursuant to that section the applicant is found to have materially violated any of the requirements of sections 191.10 to 191.24 of the Revised Code.

(B) For an application regarding a pole replacement or mid-span pole installation, the applicant shall do the following if the applicant is the pole owner, or affiliate of the pole owner:

(1) Comply with division (A) of this section;

(2) Commit that the pole owner will comply with all applicable pole attachment regulations and requirements imposed by the state or federal government;

(3) Commit that the pole owner will exclude from its costs used to calculate its rates or charges for access to its utility poles for which the applicant has been reimbursed as follows:

(a) Under the Ohio broadband pole replacement and undergrounding program or any other broadband grant program;

(b) By a provider, for make-ready charges;

(4)(a) Commit that the pole owner will maintain and make available, upon reasonable request, to the department of development or to a party subject to the rates and charges described in division (B)(3) of this section, accounting documentation sufficient to demonstrate compliance with division (B)(3) of this section;

(b) Division (B)(4)(a) of this section does not apply to an electric distribution utility as defined in section 4928.01 of the Revised Code, unless the electric distribution utility is the applicant.

Last updated August 29, 2023 at 4:36 PM

Section 191.17 | Award of reimbursement.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) Not later than sixty days after receiving an application forwarded by the department of development, the broadband expansion program authority shall award program reimbursements to the applicant for costs described in divisions (A) and (B) of section 191.21 of the Revised Code after reviewing the application, and establishing the applicant's eligibility for reimbursement under the Ohio broadband pole replacement and undergrounding program. Except as provided in division (B) of this section, program reimbursements shall be in an amount equal to the lesser of seven thousand five hundred dollars or seventy-five per cent of the total amount paid by the applicant for each pole replacement or mid-span pole installation.

(B) For undergrounding costs described under division (B) of section 191.21 of the Revised Code, the authority shall approve program reimbursements as provided in division (A) of this section, except that the reimbursements may not exceed the reimbursement amount that would be available under division (A) of this section, if the applicant had attached broadband infrastructure to utility poles instead of undergrounding that infrastructure.

Last updated August 29, 2023 at 4:27 PM

Section 191.19 | Reimbursement issued by department of development.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) The department of development, at the direction of the broadband expansion program authority, shall issue program reimbursements awarded for applications approved under the Ohio broadband pole replacement and undergrounding program. The reimbursements shall be made using money available for this purpose in the broadband pole replacement fund created in section 191.27 of the Revised Code. The authority shall award, and the department shall fund, reimbursements until funds available for that purpose are no longer available.

(B) If, upon the exhaustion of the fund, there are any applications pending, the applications shall be denied. Applications that have been denied pursuant to this division may be resubmitted to the department, and, if sufficient money is later deposited in the fund, reimbursements may be awarded according to the application and award process under sections 191.10 to 191.24 of the Revised Code.

Last updated August 29, 2023 at 4:28 PM

Section 191.21 | Costs eligible for reimbursement; records of costs reimbursed by other grants.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

If the broadband expansion program authority approves an application under the Ohio broadband pole replacement and undergrounding program, the following costs are eligible for reimbursement under the program:

(A) Actual and reasonable costs to perform a pole replacement or mid-span pole installation, including the amount of any expenditures to remove and dispose of an existing utility pole, purchase and install a replacement utility pole, and transfer any existing facilities to the new pole;

(B) Actual and reasonable undergrounding costs, including the costs to dig a trench, perform directional boring, install conduit, and seal the trench, if the undergrounding is either of the following:

(1) Required by law, regulation, or local ordinance;

(2) More economical than the cost of performing a pole replacement.

(C)(1) Costs of deploying qualifying broadband service for which the applicant is entitled to obtain full reimbursement from another governmental entity are not eligible for reimbursement under the program, except as provided in division (C)(2) of this section.

(2) If an applicant's costs for deploying such service are reimbursed in part by a governmental entity, the applicant may apply for and obtain reimbursement under the program for the portion of the eligible costs for which the applicant was not reimbursed.

(D) For applicants that obtain broadband grant funding from sources other than reimbursements under the program, the authority may require the applicants to maintain accounting records sufficient to demonstrate that the other grant funds do not fully reimburse the same costs as those reimbursed under the program.

Last updated August 29, 2023 at 4:28 PM

Section 191.24 | Reimbursement to pole owners for administrative expenses.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

A pole owner that provides information and documentation to a provider to enable the provider to submit an application to the Ohio broadband pole replacement and undergrounding program may require the provider to reimburse the owner for the owner's actual and reasonable administrative expenses, the total of which shall not exceed five per cent of the pole replacement or mid-span pole installation costs. Such costs are not eligible for reimbursement under the program.

Last updated August 29, 2023 at 4:29 PM

Section 191.27 | Broadband pole replacement fund.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

There is hereby created in the state treasury the broadband pole replacement fund consisting of money credited or transferred to the fund, money appropriated by the general assembly, including from available federal funds, or money authorized for expenditure by the state controlling board under section 131.35 of the Revised Code from available federal funds, and grants, gifts, and contributions made directly to the fund. Money in the fund shall be used by the department of development to provide reimbursements awarded under the Ohio broadband pole replacement and undergrounding program and by the director of development to administer the program.

Last updated August 29, 2023 at 4:29 PM

Section 191.30 | Refund of reimbursement for violation of program requirements.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

(A) The department of development shall direct an applicant that has been awarded a program reimbursement under the Ohio broadband pole replacement and undergrounding program to refund, with interest, all or any portion of the reimbursements the applicant received under the program, if the department finds, upon substantial evidence and after notice and the opportunity to respond, that the applicant materially violated any of the requirements agreed to under sections 191.10 to 191.24 of the Revised Code with respect to all or any portion of the reimbursements received. The interest included with a refund under this section shall be at the applicable federal funds rate as specified in division (B) of section 1304.84 of the Revised Code.

(B) At the direction of the department, refunds submitted under division (A) of this section shall be deposited into the broadband pole replacement fund created in section 191.27 of the Revised Code or the general revenue fund.

Last updated August 29, 2023 at 4:30 PM

Section 191.33 | Program information.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

Not later than sixty days after the first amount of money is deposited to the credit of the broadband pole replacement fund created in section 191.27 of the Revised Code, the department of development shall publish and regularly update on its web site the following program information:

(A) The number of program applications received, processed, and rejected by the broadband expansion program authority;

(B) The number, reimbursement amount, and status of program reimbursements awarded by the authority;

(C) The number of providers receiving reimbursements;

(D) The balance remaining in the fund at the time of the latest program update on the web site.

Last updated August 29, 2023 at 4:30 PM

Section 191.35 | Annual audit of broadband pole replacement fund and program administration.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

Beginning not later than one year after the first amount of money is deposited to the credit of the broadband pole replacement fund created in section 191.27 of the Revised Code and annually thereafter, the auditor of state shall audit the fund and its administration by the broadband expansion program authority and the department of development for compliance with the requirements of sections 191.02 to 191.45 of the Revised Code.

Last updated August 29, 2023 at 4:31 PM

Section 191.37 | Periodic report by broadband expansion program authority.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

Not later than one year after each time money in the broadband pole replacement fund created in section 191.27 of the Revised Code is exhausted, the broadband expansion program authority shall identify, examine, and report on the deployment of qualifying broadband infrastructure under the Ohio broadband pole replacement and undergrounding program and the technology facilitated by the program reimbursements the authority has awarded. The report shall be published on the department of development web site.

Last updated August 29, 2023 at 4:31 PM

Section 191.40 | Rules.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

Not later than ninety days after the effective date of this section , the director of development shall adopt rules under Chapter 119. of the Revised Code that are necessary for successful and efficient administration of the broadband pole replacement and undergrounding program.

Last updated August 29, 2023 at 4:32 PM

Section 191.43 | Cessation date of reimbursements from broadband pole replacement fund.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

On the date that is six years after the effective date of this section , payments under the Ohio broadband pole replacement fund shall cease and section 191.27 of the Revised Code shall not be in force or have further application, except as described in sections 191.44 and 191.45 of the Revised Code.

Last updated August 29, 2023 at 4:32 PM

Section 191.44 | Review of applications after cessation date.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

The department of development in coordination with the Ohio broadband expansion program authority shall do the following, for the period ending six months after the date described in section 191.43 of the Revised Code:

(A) Complete the review of any program applications that were submitted prior to the date described in section 191.43 of the Revised Code and pay program reimbursements for the approved applications;

(B) Complete the review of any program applications submitted not later than four months after the date described in section 191.43 of the Revised Code and pay program reimbursements for the approved applications, if the reimbursements are for costs that were incurred prior to the date described in section 191.43 of the Revised Code.

Last updated August 29, 2023 at 4:33 PM

Section 191.45 | Money in broadband pole replacement fund after final reimbursement.

• Effective: October 3, 2023
• Latest Legislation: House Bill 33 - 135th General Assembly

If there is an outstanding balance in the broadband pole replacement fund after the Ohio broadband pole replacement program reimbursements are paid pursuant to section 191.44 of the Revised Code, the remaining balance shall be returned to the original funding sources as determined by the department of development.

Last updated August 29, 2023 at 4:33 PM