117th CONGRESS 1st Session |
To establish a broadband infrastructure finance and innovation program to make available loans, loan guarantees, and lines of credit for the construction and deployment of broadband infrastructure, and for other purposes.
March 9, 2021
Mr. McNerney (for himself and Mrs. Axne) introduced the following bill; which was referred to the Committee on Energy and Commerce
To establish a broadband infrastructure finance and innovation program to make available loans, loan guarantees, and lines of credit for the construction and deployment of broadband infrastructure, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
(a) Short title.—This Act may be cited as the “Broadband Infrastructure Finance and Innovation Act of 2021”.
(b) Table of contents.—The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Determination of eligibility and project selection.
Sec. 4. Secured loans.
Sec. 5. Lines of credit.
Sec. 6. Alternative prudential lending standards for small projects.
Sec. 7. Program administration.
Sec. 8. State and local permits.
Sec. 9. Regulations.
Sec. 10. Funding.
Sec. 11. Reports to Congress.
In this Act:
(1) ASSISTANT SECRETARY.—The term “Assistant Secretary” means the Assistant Secretary of Commerce for Communications and Information.
(2) BIFIA PROGRAM.—The term “BIFIA program” means the broadband infrastructure finance and innovation program established under this Act.
(3) BROADBAND SERVICE.—The term “broadband service”—
(A) means broadband internet access service that is a mass-market retail service, or a service provided to an entity described in paragraph (16)(B)(ii), by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service;
(B) includes any service that is a functional equivalent of the service described in subparagraph (A); and
(C) does not include dial-up internet access service.
(4) ELIGIBLE PROJECT COSTS.—The term “eligible project costs” means amounts substantially all of which are paid by, or for the account of, an obligor in connection with a project, including the cost of—
(A) development phase activities, including planning, feasibility analysis, revenue forecasting, environmental review, historic preservation review, permitting, preliminary engineering and design work, and other preconstruction activities;
(B) construction and deployment phase activities, including—
(i) construction, reconstruction, rehabilitation, replacement, and acquisition of real property (including land relating to the project and improvements to land), equipment, instrumentation, networking capability, hardware and software, and digital network technology;
(ii) environmental mitigation; and
(iii) construction contingencies; and
(C) capitalized interest necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses, and other carrying costs during construction and deployment.
(5) FEDERAL AGENCY.—The term “Federal agency” has the meaning given the term “agency” in section 551 of title 5, United States Code.
(6) FEDERAL CREDIT INSTRUMENT.—The term “Federal credit instrument” means a secured loan, loan guarantee, or line of credit authorized to be made available under the BIFIA program with respect to a project.
(7) INDIAN TRIBE.—The term “Indian Tribe” has the meaning given such term in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(e)).
(8) INSTITUTION OF HIGHER EDUCATION.—The term “institution of higher education”—
(A) has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001); and
(B) includes a postsecondary vocational institution.
(9) INVESTMENT-GRADE RATING.—The term “investment-grade rating” means a rating of BBB minus, Baa3, bbb minus, BBB (low), or higher assigned by a rating agency to project obligations.
(10) LENDER.—The term “lender” means any non-Federal qualified institutional buyer (as defined in section 230.144A(a) of title 17, Code of Federal Regulations (or any successor regulation), known as Rule 144A(a) of the Securities and Exchange Commission and issued under the Securities Act of 1933 (15 U.S.C. 77a et seq.)), including—
(A) a qualified retirement plan (as defined in section 4974(c) of the Internal Revenue Code of 1986) that is a qualified institutional buyer; and
(B) a governmental plan (as defined in section 414(d) of the Internal Revenue Code of 1986) that is a qualified institutional buyer.
(11) LETTER OF INTEREST.—The term “letter of interest” means a letter submitted by a potential applicant prior to an application for credit assistance in a format prescribed by the Assistant Secretary on the website of the BIFIA program that—
(A) describes the project and the location, purpose, and cost of the project;
(B) outlines the proposed financial plan, including the requested credit assistance and the proposed obligor;
(C) provides a status of environmental review; and
(D) provides information regarding satisfaction of other eligibility requirements of the BIFIA program.
(12) LINE OF CREDIT.—The term “line of credit” means an agreement entered into by the Assistant Secretary with an obligor under section 5 to provide a direct loan at a future date upon the occurrence of certain events.
(13) LOAN GUARANTEE.—The term “loan guarantee” means any guarantee or other pledge by the Assistant Secretary to pay all or part of the principal of and interest on a loan or other debt obligation issued by an obligor and funded by a lender.
(14) OBLIGOR.—The term “obligor” means a party that—
(A) is primarily liable for payment of the principal of or interest on a Federal credit instrument; and
(B) may be a corporation, company, partnership, joint venture, trust, or governmental entity, agency, or instrumentality.
(15) POSTSECONDARY VOCATIONAL INSTITUTION.—The term “postsecondary vocational institution” has the meaning given the term in section 102(c) of the Higher Education Act of 1965 (20 U.S.C. 1002(c)).
(16) PROJECT.—The term “project” means a project—
(A) to construct and deploy infrastructure for the provision of broadband service; and
(B) that the Assistant Secretary determines will—
(i) provide access or improved access to broadband service to consumers residing in areas of the United States that have no access to broadband service or do not have access to broadband service offered—
(I) with a download speed of at least 100 megabits per second;
(II) with an upload speed of at least 100 megabits per second; and
(III) with latency that is sufficiently low to allow multiple, simultaneous, real-time, interactive applications; or
(ii) provide access or improved access to broadband service to—
(I) schools, libraries, medical and healthcare providers, community colleges and other institutions of higher education, museums, religious organizations, and other community support organizations and entities to facilitate greater use of broadband service by or through such organizations;
(II) organizations and agencies that provide outreach, access, equipment, and support services to facilitate greater use of broadband service by low-income, unemployed, aged, and otherwise vulnerable populations;
(III) job-creating strategic facilities located within a State-designated economic zone, Economic Development District designated by the Department of Commerce, Empowerment Zone designated by the Department of Housing and Urban Development, or Enterprise Community designated by the Department of Agriculture; or
(IV) public safety agencies.
(17) PROJECT OBLIGATION.—The term “project obligation” means any note, bond, debenture, or other debt obligation issued by an obligor in connection with the financing of a project, other than a Federal credit instrument.
(18) PUBLIC AUTHORITY.—The term “public authority” means a Federal, State, county, town or township, Indian Tribe, municipal, or other local government or instrumentality with authority to finance, build, operate, or maintain infrastructure for the provision of broadband service.
(19) RATING AGENCY.—The term “rating agency” means a credit rating agency registered with the Securities and Exchange Commission as a nationally recognized statistical rating organization (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a))).
(20) SECURED LOAN.—The term “secured loan” means a direct loan or other debt obligation issued by an obligor and funded by the Assistant Secretary in connection with the financing of a project under section 4.
(21) SMALL PROJECT.—The term “small project” means a project having eligible project costs that are reasonably anticipated not to equal or exceed $20,000,000.
(22) STATE.—The term “State” has the meaning given the term in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
(23) SUBSIDY AMOUNT.—The term “subsidy amount” means the amount of budget authority sufficient to cover the estimated long-term cost to the Federal Government of a Federal credit instrument—
(A) calculated on a net present value basis; and
(B) excluding administrative costs and any incidental effects on governmental receipts or outlays in accordance with the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.).
(24) SUBSTANTIAL COMPLETION.—The term “substantial completion” means, with respect to a project receiving credit assistance under the BIFIA program—
(A) the commencement of the provision of broadband service using the infrastructure being financed; or
(B) a comparable event, as determined by the Assistant Secretary and specified in the credit agreement.
(1) IN GENERAL.—A project shall be eligible to receive credit assistance under the BIFIA program if—
(A) the entity proposing to carry out the project submits a letter of interest prior to submission of a formal application for the project; and
(B) the project meets the criteria described in this subsection.
(A) IN GENERAL.—Except as provided in subparagraph (B), to be eligible for assistance under the BIFIA program, a project shall satisfy applicable creditworthiness standards, which, at a minimum, shall include—
(i) adequate coverage requirements to ensure repayment;
(ii) an investment-grade rating from at least two rating agencies on debt senior to the Federal credit instrument; and
(iii) a rating from at least two rating agencies on the Federal credit instrument.
(B) SMALL PROJECTS.—In order for a small project to be eligible for assistance under the BIFIA program, such project shall satisfy alternative creditworthiness standards that shall be established by the Assistant Secretary under section 6 for purposes of this paragraph.
(3) APPLICATION.—A State, local government, agency or instrumentality of a State or local government, public authority, public-private partnership, or any other legal entity undertaking the project and authorized by the Assistant Secretary shall submit a project application that is acceptable to the Assistant Secretary.
(4) ELIGIBLE PROJECT COST PARAMETERS FOR INFRASTRUCTURE PROJECTS.—Eligible project costs shall be reasonably anticipated to equal or exceed $2,000,000 in the case of a project or program of projects—
(A) in which the applicant is a local government, instrumentality of local government, or public authority (other than a public authority that is a Federal or State government or instrumentality);
(B) located on a facility owned by a local government; or
(C) for which the Assistant Secretary determines that a local government is substantially involved in the development of the project.
(5) DEDICATED REVENUE SOURCES.—The applicable Federal credit instrument shall be repayable, in whole or in part, from—
(i) subscribers of broadband service for such service; or
(ii) subscribers of any related service provided over the same infrastructure for such related service;
(B) user fees;
(C) payments owing to the obligor under a public-private partnership; or
(D) other dedicated revenue sources that also secure or fund the project obligations.
(6) APPLICATIONS WHERE OBLIGOR WILL BE IDENTIFIED LATER.—A State, local government, agency or instrumentality of a State or local government, or public authority may submit to the Assistant Secretary an application under paragraph (3), under which a private party to a public-private partnership will be—
(A) the obligor; and
(B) identified later through completion of a procurement and selection of the private party.
(7) BENEFICIAL EFFECTS.—The Assistant Secretary shall determine that financial assistance for the project under the BIFIA program will—
(A) foster, if appropriate, partnerships that attract public and private investment for the project;
(B) enable the project to proceed at an earlier date than the project would otherwise be able to proceed or reduce the lifecycle costs (including debt service costs) of the project; and
(C) reduce the contribution of Federal grant assistance for the project.
(8) PROJECT READINESS.—To be eligible for assistance under the BIFIA program, the applicant shall demonstrate a reasonable expectation that the contracting process for the construction and deployment of infrastructure for the provision of broadband service through the project can commence by no later than 90 days after the date on which a Federal credit instrument is obligated for the project under the BIFIA program.
(9) PUBLIC SPONSORSHIP OF PRIVATE ENTITIES.—
(A) IN GENERAL.—If an eligible project is carried out by an entity that is not a State or local government or an agency or instrumentality of a State or local government or a Tribal Government or consortium of Tribal Governments, the project shall be publicly sponsored.
(B) PUBLIC SPONSORSHIP.—For purposes of this Act, a project shall be considered to be publicly sponsored if the obligor can demonstrate, to the satisfaction of the Assistant Secretary, that the project applicant has consulted with the State, local, or Tribal government in the area in which the project is located, or that is otherwise affected by the project, and that such government supports the proposal.
(b) Selection among eligible projects.—
(1) ESTABLISHMENT OF APPLICATION PROCESS.—The Assistant Secretary shall establish a rolling application process under which projects that are eligible to receive credit assistance under subsection (a) shall receive credit assistance on terms acceptable to the Assistant Secretary, if adequate funds are available to cover the subsidy costs associated with the Federal credit instrument.
(2) PRELIMINARY RATING OPINION LETTER.—The Assistant Secretary shall require each project applicant to provide—
(A) a preliminary rating opinion letter from at least one rating agency—
(i) indicating that the senior obligations of the project, which may be the Federal credit instrument, have the potential to achieve an investment-grade rating; and
(ii) including a preliminary rating opinion on the Federal credit instrument; or
(B) in the case of a small project, alternative documentation that the Assistant Secretary shall require in the standards established under section 6 for purposes of this paragraph.
(3) TECHNOLOGY NEUTRALITY REQUIRED.—In selecting projects to receive credit assistance under the BIFIA program, the Assistant Secretary may not favor a project using any particular technology.
(4) PREFERENCE FOR OPEN-ACCESS NETWORKS.—In selecting projects to receive credit assistance under the BIFIA program, the Assistant Secretary shall give preference to projects providing for the deployment of open-access broadband service networks.
(1) IN GENERAL.—The following provisions of law shall apply to funds made available under the BIFIA program and projects assisted with those funds:
(A) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
(B) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(C) 54 U.S.C. 300101 et seq. (commonly referred to as the “National Historic Preservation Act”).
(D) The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.).
(2) NEPA.—No funding shall be obligated for a project that has not received an environmental categorical exclusion, a finding of no significant impact, or a record of decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(3) TITLE VI OF THE CIVIL RIGHTS ACT OF 1964.—For purposes of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), any project that receives credit assistance under the BIFIA program shall be considered a program or activity within the meaning of section 606 of such title (42 U.S.C. 2000d–4a).
(4) CONTRACTING REQUIREMENTS.—All laborers and mechanics employed by contractors or subcontractors in the performance of construction, alteration, or repair work carried out, in whole or in part, with assistance made available through a Federal credit instrument shall be paid wages at rates not less than those prevailing on projects of a similar character in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code. With respect to the labor standards in this paragraph, the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, United States Code.
(5) NEUTRALITY REQUIREMENT.—An employer receiving assistance made available through a Federal credit instrument under this Act shall remain neutral with respect to the exercise of employees and labor organizations of the right to organize and bargain under the National Labor Relations Act (29 U.S.C. 151 et seq.).
(6) REFERRAL OF ALLEGED VIOLATIONS OF APPLICABLE FEDERAL LABOR AND EMPLOYMENT LAWS.—The Assistant Secretary shall refer any alleged violation of an applicable labor and employment law to the appropriate Federal agency for investigation and enforcement, and any alleged violation of paragraph (4) or (5) to the National Labor Relations Board for investigation and enforcement, utilizing all appropriate remedies up to and including debarment from the BIFIA program.
(d) Application processing procedures.—
(1) NOTICE OF COMPLETE APPLICATION.—Not later than 30 days after the date of receipt of an application under this section, the Assistant Secretary shall provide to the applicant a written notice to inform the applicant whether—
(A) the application is complete; or
(B) additional information or materials are needed to complete the application.
(2) APPROVAL OR DENIAL OF APPLICATION.—Not later than 60 days after the date of issuance of the written notice under paragraph (1), the Assistant Secretary shall provide to the applicant a written notice informing the applicant whether the Assistant Secretary has approved or disapproved the application.
(3) APPROVAL BEFORE NEPA REVIEW.—Subject to subsection (c)(2), an application for a project may be approved before the project receives an environmental categorical exclusion, a finding of no significant impact, or a record of decision under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(e) Development phase activities.—Any credit instrument secured under the BIFIA program may be used to finance up to 100 percent of the cost of development phase activities as described in section 2(4)(A).
(1) AGREEMENTS.—Subject to paragraphs (2) and (3), the Assistant Secretary may enter into agreements with one or more obligors to make secured loans, the proceeds of which shall be used—
(A) to finance eligible project costs of any project selected under section 3;
(B) to refinance interim construction financing of eligible project costs of any project selected under section 3; or
(C) to refinance long-term project obligations or Federal credit instruments, if the refinancing provides additional funding capacity for the completion, enhancement, or expansion of any project that—
(i) is selected under section 3; or
(ii) otherwise meets the requirements of section 3.
(2) LIMITATION ON REFINANCING OF INTERIM CONSTRUCTION FINANCING.—A loan under paragraph (1) shall not refinance interim construction financing under paragraph (1)(B)—
(A) if the maturity of such interim construction financing is later than 1 year after the substantial completion of the project; and
(B) later than 1 year after the date of substantial completion of the project.
(3) RISK ASSESSMENT.—Before entering into an agreement under this subsection, the Assistant Secretary, in consultation with the Director of the Office of Management and Budget, shall determine an appropriate capital reserve subsidy amount for each secured loan, taking into account each rating letter provided by a rating agency under section 3(b)(2)(A)(ii) or, in the case of a small project, the alternative documentation provided under section 3(b)(2)(B).
(1) IN GENERAL.—A secured loan under this section with respect to a project shall be on such terms and conditions and contain such covenants, representations, warranties, and requirements (including requirements for audits) as the Assistant Secretary determines to be appropriate.
(2) MAXIMUM AMOUNT.—The amount of a secured loan under this section shall not exceed the lesser of 49 percent of the reasonably anticipated eligible project costs or, if the secured loan is not for a small project and does not receive an investment-grade rating, the amount of the senior project obligations.
(3) PAYMENT.—A secured loan under this section—
(i) be payable, in whole or in part, from—
(aa) subscribers of broadband service for such service; or
(bb) subscribers of any related service provided over the same infrastructure for such related service;
(II) user fees;
(III) payments owing to the obligor under a public-private partnership; or
(IV) other dedicated revenue sources that also secure the senior project obligations; and
(ii) include a coverage requirement or similar security feature supporting the project obligations; and
(B) may have a lien on revenues described in subparagraph (A), subject to any lien securing project obligations.
(4) INTEREST RATE.—The interest rate on a secured loan under this section shall be not less than the yield on United States Treasury securities of a similar maturity to the maturity of the secured loan on the date of execution of the loan agreement.
(5) MATURITY DATE.—The final maturity date of the secured loan shall be the lesser of—
(A) 35 years after the date of substantial completion of the project; and
(B) if the useful life of the infrastructure for the provision of broadband service being financed is of a lesser period, the useful life of the infrastructure.
(A) IN GENERAL.—Except as provided in subparagraph (B), the secured loan shall not be subordinated to the claims of any holder of project obligations in the event of bankruptcy, insolvency, or liquidation of the obligor.
(i) IN GENERAL.—The Assistant Secretary shall waive the requirement under subparagraph (A) for a public agency borrower that is financing ongoing capital programs and has outstanding senior bonds under a preexisting indenture, if—
(aa) is rated in the A category or higher; or
(bb) in the case of a small project, meets an alternative standard that the Assistant Secretary shall establish under section 6 for purposes of this subclause;
(II) the secured loan is secured and payable from pledged revenues not affected by project performance, such as a tax-backed revenue pledge or a system-backed pledge of project revenues; and
(III) the BIFIA program share of eligible project costs is 33 percent or less.
(ii) LIMITATION.—If the Assistant Secretary waives the nonsubordination requirement under this subparagraph—
(I) the maximum credit subsidy to be paid by the Federal Government shall be not more than 10 percent of the principal amount of the secured loan; and
(II) the obligor shall be responsible for paying the remainder of the subsidy cost, if any.
(7) FEES.—The Assistant Secretary may establish fees at a level sufficient to cover all or a portion of the costs to the Federal Government of making a secured loan under this section.
(8) NON-FEDERAL SHARE.—The proceeds of a secured loan under the BIFIA program, if the loan is repayable from non-Federal funds—
(A) may be used for any non-Federal share of project costs required under this Act; and
(B) shall not count toward the total Federal assistance provided for a project for purposes of paragraph (9).
(9) MAXIMUM FEDERAL INVOLVEMENT.—The total Federal assistance provided for a project receiving a loan under the BIFIA program shall not exceed 80 percent of the total project cost.
(1) SCHEDULE.—The Assistant Secretary shall establish a repayment schedule for each secured loan under this section based on—
(A) the projected cash flow from project revenues and other repayment sources; and
(B) the useful life of the infrastructure for the provision of broadband service being financed.
(2) COMMENCEMENT.—Scheduled loan repayments of principal or interest on a secured loan under this section shall commence not later than 5 years after the date of substantial completion of the project.
(A) IN GENERAL.—If, at any time after the date of substantial completion of the project, the project is unable to generate sufficient revenues to pay the scheduled loan repayments of principal and interest on the secured loan, the Assistant Secretary may, subject to subparagraph (C), allow the obligor to add unpaid principal and interest to the outstanding balance of the secured loan.
(B) INTEREST.—Any payment deferred under subparagraph (A) shall—
(i) continue to accrue interest in accordance with subsection (b)(4) until fully repaid; and
(ii) be scheduled to be amortized over the remaining term of the loan.
(i) IN GENERAL.—Any payment deferral under subparagraph (A) shall be contingent on the project meeting criteria established by the Assistant Secretary.
(ii) REPAYMENT STANDARDS.—The criteria established pursuant to clause (i) shall include standards for reasonable assurance of repayment.
(A) USE OF EXCESS REVENUES.—Any excess revenues that remain after satisfying scheduled debt service requirements on the project obligations and secured loan and all deposit requirements under the terms of any trust agreement, bond resolution, or similar agreement securing project obligations may be applied annually to prepay the secured loan without penalty.
(B) USE OF PROCEEDS OF REFINANCING.—The secured loan may be prepaid at any time without penalty from the proceeds of refinancing from non-Federal funding sources.
(1) IN GENERAL.—Subject to paragraph (2), as soon as practicable after substantial completion of a project and after notifying the obligor, the Assistant Secretary may sell to another entity or reoffer into the capital markets a secured loan for the project if the Assistant Secretary determines that the sale or reoffering can be made on favorable terms.
(2) CONSENT OF OBLIGOR.—In making a sale or reoffering under paragraph (1), the Assistant Secretary may not change the original terms and conditions of the secured loan without the written consent of the obligor.
(1) IN GENERAL.—The Assistant Secretary may provide a loan guarantee to a lender in lieu of making a secured loan under this section if the Assistant Secretary determines that the budgetary cost of the loan guarantee is substantially the same as that of a secured loan.
(2) TERMS.—The terms of a loan guarantee under paragraph (1) shall be consistent with the terms required under this section for a secured loan, except that the rate on the guaranteed loan and any prepayment features shall be negotiated between the obligor and the lender, with the consent of the Assistant Secretary.
(f) Streamlined application process.—
(1) IN GENERAL.—The Assistant Secretary shall develop one or more expedited application processes, available at the request of entities seeking secured loans under the BIFIA program, that use a set or sets of conventional terms established pursuant to this section.
(2) TERMS.—In establishing the streamlined application process required by this subsection, the Assistant Secretary may allow for an expedited application period and include terms such as those that require—
(A) that the project be a small project;
(B) the secured loan to be secured and payable from pledged revenues not affected by project performance, such as a tax-backed revenue pledge, tax increment financing, or a system-backed pledge of project revenues; and
(C) repayment of the loan to commence not later than 5 years after disbursement.
(1) AGREEMENTS.—Subject to paragraphs (2) through (4), the Assistant Secretary may enter into agreements to make available to one or more obligors lines of credit in the form of direct loans to be made by the Assistant Secretary at future dates on the occurrence of certain events for any project selected under section 3.
(2) USE OF PROCEEDS.—The proceeds of a line of credit made available under this section shall be available to pay debt service on project obligations issued to finance eligible project costs, extraordinary repair and replacement costs, operation and maintenance expenses, and costs associated with unexpected Federal or State environmental restrictions.
(A) IN GENERAL.—Except as provided in subparagraph (B), before entering into an agreement under this subsection, the Assistant Secretary, in consultation with the Director of the Office of Management and Budget and each rating agency providing a preliminary rating opinion letter under section 3(b)(2)(A), shall determine an appropriate capital reserve subsidy amount for each line of credit, taking into account the rating opinion letter.
(B) SMALL PROJECTS.—Before entering into an agreement under this subsection to make available a line of credit for a small project, the Assistant Secretary, in consultation with the Director of the Office of Management and Budget, shall determine an appropriate capital reserve subsidy amount for each such line of credit, taking into account the alternative documentation provided under section 3(b)(2)(B) instead of preliminary rating opinion letters provided under section 3(b)(2)(A).
(4) INVESTMENT-GRADE RATING REQUIREMENT.—The funding of a line of credit under this section shall be contingent on—
(A) the senior obligations of the project receiving an investment-grade rating from 2 rating agencies; or
(B) in the case of a small project, the project meeting an alternative standard that the Assistant Secretary shall establish under section 6 for purposes of this paragraph.
(1) IN GENERAL.—A line of credit under this section with respect to a project shall be on such terms and conditions and contain such covenants, representations, warranties, and requirements (including requirements for audits) as the Assistant Secretary determines to be appropriate.
(2) MAXIMUM AMOUNTS.—The total amount of a line of credit under this section shall not exceed 33 percent of the reasonably anticipated eligible project costs.
(3) DRAWS.—Any draw on a line of credit under this section shall—
(A) represent a direct loan; and
(B) be made only if net revenues from the project (including capitalized interest, but not including reasonably required financing reserves) are insufficient to pay the costs specified in subsection (a)(2).
(4) INTEREST RATE.—The interest rate on a direct loan resulting from a draw on the line of credit shall be not less than the yield on 30-year United States Treasury securities, as of the date of execution of the line of credit agreement.
(5) SECURITY.—A line of credit issued under this section—
(i) be payable, in whole or in part, from—
(aa) subscribers of broadband service for such service; or
(bb) subscribers of any related service provided over the same infrastructure for such related service;
(II) user fees;
(III) payments owing to the obligor under a public-private partnership; or
(IV) other dedicated revenue sources that also secure the senior project obligations; and
(ii) include a coverage requirement or similar security feature supporting the project obligations; and
(B) may have a lien on revenues described in subparagraph (A), subject to any lien securing project obligations.
(6) PERIOD OF AVAILABILITY.—The full amount of a line of credit under this section, to the extent not drawn upon, shall be available during the 10-year period beginning on the date of substantial completion of the project.
(7) RIGHTS OF THIRD-PARTY CREDITORS.—
(A) AGAINST FEDERAL GOVERNMENT.—A third-party creditor of the obligor shall not have any right against the Federal Government with respect to any draw on a line of credit under this section.
(B) ASSIGNMENT.—An obligor may assign a line of credit under this section to—
(i) one or more lenders; or
(ii) a trustee on the behalf of such a lender.
(A) IN GENERAL.—Except as provided in subparagraph (B), a direct loan under this section shall not be subordinated to the claims of any holder of project obligations in the event of bankruptcy, insolvency, or liquidation of the obligor.
(i) IN GENERAL.—The Assistant Secretary shall waive the requirement of subparagraph (A) for a public agency borrower that is financing ongoing capital programs and has outstanding senior bonds under a preexisting indenture, if—
(aa) is rated in the A category or higher; or
(bb) in the case of a small project, meets an alternative standard that the Assistant Secretary shall establish under section 6 for purposes of this subclause;
(II) the BIFIA program loan resulting from a draw on the line of credit is payable from pledged revenues not affected by project performance, such as a tax-backed revenue pledge or a system-backed pledge of project revenues; and
(III) the BIFIA program share of eligible project costs is 33 percent or less.
(ii) LIMITATION.—If the Assistant Secretary waives the nonsubordination requirement under this subparagraph—
(I) the maximum credit subsidy to be paid by the Federal Government shall be not more than 10 percent of the principal amount of the secured loan; and
(II) the obligor shall be responsible for paying the remainder of the subsidy cost.
(9) FEES.—The Assistant Secretary may establish fees at a level sufficient to cover all or a portion of the costs to the Federal Government of providing a line of credit under this section.
(10) RELATIONSHIP TO OTHER CREDIT INSTRUMENTS.—A project that receives a line of credit under this section also shall not receive a secured loan or loan guarantee under section 4 in an amount that, combined with the amount of the line of credit, exceeds 49 percent of eligible project costs.
(1) TERMS AND CONDITIONS.—The Assistant Secretary shall establish repayment terms and conditions for each direct loan under this section based on—
(A) the projected cash flow from project revenues and other repayment sources; and
(B) the useful life of the infrastructure for the provision of broadband service being financed.
(2) TIMING.—All repayments of principal or interest on a direct loan under this section shall be scheduled—
(A) to commence not later than 5 years after the end of the period of availability specified in subsection (b)(6); and
(B) to conclude, with full repayment of principal and interest, by the date that is 25 years after the end of the period of availability specified in subsection (b)(6).
Not later than 180 days after the date of the enactment of this Act, the Assistant Secretary shall establish alternative, streamlined prudential lending standards for small projects receiving credit assistance under the BIFIA program to ensure that such projects pose no additional risk to the Federal Government, as compared with projects that are not small projects.
(a) Requirement.—The Assistant Secretary shall establish a uniform system to service the Federal credit instruments made available under the BIFIA program.
(b) Fees.—The Assistant Secretary may collect and spend fees, contingent on authority being provided in appropriations Acts, at a level that is sufficient to cover—
(1) the costs of services of expert firms retained pursuant to subsection (d); and
(2) all or a portion of the costs to the Federal Government of servicing the Federal credit instruments.
(1) IN GENERAL.—The Assistant Secretary may appoint a financial entity to assist the Assistant Secretary in servicing the Federal credit instruments.
(2) DUTIES.—A servicer appointed under paragraph (1) shall act as the agent for the Assistant Secretary.
(3) FEE.—A servicer appointed under paragraph (1) shall receive a servicing fee, subject to approval by the Assistant Secretary.
(d) Assistance from expert firms.—The Assistant Secretary may retain the services of expert firms, including counsel, in the field of municipal and project finance to assist in the underwriting and servicing of Federal credit instruments.
(e) Expedited processing.—The Assistant Secretary shall implement procedures and measures to economize the time and cost involved in obtaining approval and the issuance of credit assistance under the BIFIA program.
(f) Assistance to small projects.—Of the amount appropriated under section 10(a), and after the set-aside for administrative expenses under section 10(b), not less than 20 percent shall be made available for the Assistant Secretary to use in lieu of fees collected under subsection (b) for small projects.
The provision of credit assistance under the BIFIA program with respect to a project shall not—
(1) relieve any recipient of the assistance of any obligation to obtain any required State or local permit or approval with respect to the project;
(2) limit the right of any unit of State or local government to approve or regulate any rate of return on private equity invested in the project; or
(3) otherwise supersede any State or local law (including any regulation) applicable to the construction or operation of the project.
The Assistant Secretary may promulgate such regulations as the Assistant Secretary determines to be appropriate to carry out the BIFIA program.
(a) Authorization of appropriations.—There is authorized to be appropriated to the Assistant Secretary $5,000,000,000 for fiscal year 2022 to carry out this Act, and such amount is authorized to remain available until expended.
(b) Administrative expenses.—Of the amount appropriated under subsection (a), the Assistant Secretary may use not more than 5 percent for the administration of the BIFIA program.
(a) In general.—Not later than 1 year after the date of the enactment of this Act, and every 2 years thereafter, the Assistant Secretary shall submit to Congress a report summarizing the financial performance of the projects that are receiving, or have received, assistance under the BIFIA program, including a recommendation as to whether the objectives of the BIFIA program are best served by—
(1) continuing the program under the authority of the Assistant Secretary; or
(2) establishing a Federal corporation or federally sponsored enterprise to administer the program.
(b) Application process report.—
(1) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Assistant Secretary shall submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report that includes a list of all of the letters of interest and applications received for assistance under the BIFIA program during the preceding fiscal year.
(A) IN GENERAL.—Each report under paragraph (1) shall include, at a minimum, a description of, with respect to each letter of interest and application included in the report—
(i) the date on which the letter of interest or application was received;
(ii) the date on which a notification was provided to the applicant regarding whether the application was complete or incomplete;
(iii) the date on which a revised and completed application was submitted (if applicable);
(iv) the date on which a notification was provided to the applicant regarding whether the project was approved or disapproved; and
(v) if the project was not approved, the reason for the disapproval.
(B) CORRESPONDENCE.—Each report under paragraph (1) shall include copies of any correspondence provided to the applicant in accordance with section 3(d).