WEST virginia legislature
2018 regular session
Senate Bill 445
By Senators Boso, Swope, Gaunch, Jeffries, Rucker, Maroney, Plymale, Maynard, and Beach
[Originating in the Committee on Government Organization; Reported on February 23, 2018]
A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17-2A-17a; to amend said code by adding thereto a new article, designated §17-2E-1, §17-2E-2, §17-2E-3, §17-2E-4, §17-2E-5, §17-2E-6, §17-2E-7, and §17-2E-8; to amend said code by adding thereto two new sections, designated §17-4-17b and §17-4-17e; and to amend said code by adding thereto a new section, designated §24-2-20, all relating to public utilities; creating new legislative findings; defining terms; providing for longitudinal access on Division of Highways rights-of-way; setting forth terms for certain agreements including how they must relate to other telecommunications carriers; requiring the Division of Highways comply with certain federal requirements as to fair market value and obtaining certain Federal Highway Administration approvals; setting forth requirements for fair and reasonable compensation for access to the right-of-way; authorizing compensation to be monetary, in-kind, or a combination of both; providing for reevaluation of the compensation every five years; providing that the Division of Highways has sole discretion to deny access if the safe, efficient, and convenient use of highway, road, or interstate would be compromised; providing that the access granted herein does not affect previous access granted by the division; promoting joint use and proportionate cost sharing; requiring a carrier seeking a permit to notify the Broadband Enhancement Council and other carriers of record of the permit application; setting forth notice requirements; providing that a carrier seeking the permit must resolve any disputes among other carriers seeking access; providing that the Public Service Commission will resolve disputes the carriers are not able to resolve; requiring all carriers sharing a trench to share the cost and benefits; requiring the division deposit any compensation collected for access to its right-of-way be deposited in the State Road Fund; authorizing in-kind compensation and listing allowable telecommunications facilities for in-kind payment; requiring the division to value in-kind compensation at fair market value; providing that in-kind compensation may be disposed of after 10 years if it is not being used; giving the carrier providing the in-kind compensation right of first refusal; providing for public auction in certain circumstances; providing that multiple carriers in the same trench have obligation to compensate the division; allowing the division to hold each carrier jointly and severally liable for obligations owed to the division; requiring carriers allow the division to audit records and contracts to ensure compliance; providing that existing policies, rules and procedures relating to other utilities within the right-of-way are not altered by this act; allowing the division to consider the financial and technical qualifications of a carrier when setting insurance requirements; allowing the division to require carriers to install telecommunications in the same general location, coordinate planning and work with other contractors in the same area; requiring placement, installation, maintenance, repair, use, operation and related activities on the right-of-way be in compliance with the division’s rules, policies and guidelines; and requiring that access to a right-of-way be administered in compliance with the Telecommunications Act of 1996, 47 U.S.C. §151, et seq.; establishing a method by which the Commissioner of the Division of Highways may acquire certain rights-of-way and easements for the purpose of increasing public access to utilities; establishing a procedure for the Division of Highways to lease acquisitions to utilities for fair market value; and establishing a cost-sharing procedure for determining how relocation costs are to be paid by the utility.
Be it enacted by the Legislature of West Virginia:
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-17a. Acquisition of property for utility accommodation purposes; utility defined.
(a) The Legislature finds that it is in the public interest for utility facilities to be accommodated on the right-of-way of state highways when such use and occupancy of the highway right-of-way do not adversely affect highway or traffic safety or otherwise impair the highway or its aesthetic quality, and do not conflict with the provisions of federal, state, or local laws, legislative rules, or agency policies. Utilities provide an essential service to the general public and, as a matter of sound economic public policy and law, utilities have used state road rights-of-way for transmitting and distributing their services. Such accommodation of utility facilities on the right-of-way of state highways serves an important public purpose by increasing public access to utility services.
(b) “Utility” means, for purposes of this chapter, privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, data, information, video services, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, stormwater not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public. The term “utility” also includes those similar facilities which are owned or leased by a government agency for its own use, or otherwise dedicated solely to governmental use.
(c) In addition to all other powers given and assigned to the commissioner in this chapter, the commissioner may acquire, either temporarily or permanently, in the name of the Division of Highways, all real or personal property, public or private, or any interests or rights therein, including any easement, riparian right, or right of access, determined by the commissioner to be necessary for present or presently foreseeable future utility accommodation purposes.
(d) Notwithstanding any provision of this article, the commissioner may lease real property held by the Division of Highways or any interest or right in the property, including airspace rights, if any, for the purpose of accommodating any utility that has requested a lease if the commissioner finds, in his or her sole discretion, that entering into the lease agreement with the utility is in the public interest. The term of any accommodation lease authorized by this section shall not exceed 30 years. Neither competitive bids nor public solicitations are required prior to entering into a utility accommodation lease. Any utility accommodation lease shall require the utility to pay fair market value for the real property interest as determined by the commissioner using common valuation methods, which shall include consideration of the use of the property for utility accommodation purposes: Provided, That amounts paid for property damage by the division in a condemnation case shall not be considered in the commissioner’s determination of fair market value. The commissioner shall have the option to charge and collect a one-time lease payment or fixed installment lease payments from a utility in connection with an accommodation lease. All moneys received from utility accommodation leases shall be paid into the state Treasury and credited to the State Road Fund. The provisions of this subsection are completely voluntary and shall not be interpreted to require any utility to lease any real property, or any interest or right in the property, from the commissioner.
ARTICLE 2E. DIG ONCE POLICY.
§17-2E-1. Legislative findings.
(a) The Legislature finds that it is in the public interest to accommodate telecommunications facilities on Division of Highways’ right-of-way when the use of the right-of-way does not adversely affect the safety of the traveling public or impair the highway or its aesthetic quality or conflict with any federal, state, or local laws, rules, regulations, or policies.
(b) The Legislature further finds that a broadband connection is an essential part of developing the state and local economies, enhancing the transportation system and creating a safer and more secure environment for our citizens.
(c) The Legislature further finds that expanding telecommunication facilities will allow the state to participate in the E-Rate Program of funding for digital education in America to provide reliable services opportunities for education and training.
(d) The Legislature further finds that fast, reliable broadband connections enhance telemedical opportunities for our rural doctors and hospitals, linking them to our major medical centers. Thereby overcoming distance barriers, and improving access to medical services that often are not consistently available in rural communities.
(e) The Legislature further finds that instituting a dig once policy encourages telecommunications carriers to coordinate installation of broadband conduit to minimize costs to the carriers and minimize disruption and inconvenience to the traveling public.
For the purposes of this article:
“Broadband conduit” or “conduit” means a conduit, innerduct, or microduct for fiber optic cables that support facilities for broadband service.
“Longitudinal access” means access to or the use of any part of a right-of-way that extends generally parallel to the traveled way.
“Permit” means an encroachment permit issued by the West Virginia Division of Highways that specifies the requirements and conditions for performing work in a right-of-way.
“Right-of-way” means land, property, or any interest therein acquired or controlled by the West Virginia Division of Highways for transportation facilities or other transportation purposes or specifically acquired for utility accommodation.
“Telecommunications facility” means any cable, line, fiber, wire, conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmitting equipment, receiving equipment, power equipment, or other equipment, system, or device that is used to transmit, receive, produce, or distribute a signal for telecommunications purposes via wireless, wireline, electronic, or optical means.
“Telecommunications carrier” means a telecommunications provider as determined by the Public Service Commission of West Virginia or that meets the definition of telecommunications carrier with respect to the Federal Communications Commission, as contained in 47 U.S.C. §153
“Utility facility” has the meaning ascribed to it in §17-2A-17a of this code.
“Wireless access” means access to and use of a right-of-way for the purpose of constructing, installing, maintaining, using, or operating telecommunications facilities for wireless telecommunications.
§17-2E-3. Use of rights-of-way.
(a) Before granting longitudinal access or wireless access to a right-of-way, the Division of Highways shall first enter into an agreement with a telecommunications carrier that is competitively neutral and nondiscriminatory as to other telecommunications carriers. Upon receipt of any required approval or concurrence by the Federal Highway Administration the division may issue a permit granting access under this section: Provided, That the Division of Highways shall comply with all applicable federal regulations with respect to approval of an agreement, including but not limited to 23 C.F.R. § 710.403 and 23 C.F.R. §710.405. The agreement shall be approved by the Commissioner of Highways in order to be effective and, without limitation:
(1) Specify the terms and conditions for renegotiation of the agreement;
(2) Set forth the maintenance requirements for each telecommunications facility;
(3) Be nonexclusive; and
(4) Be for a term of not more than 30 years.
(b) Unless specifically provided for in an agreement entered into pursuant to §17-2E-3(a) of this code, the Division of Highways may not grant a property interest in a right-of-way pursuant to this article.
(c) A telecommunications carrier shall compensate the Division of Highways for access to a right-of-way for the construction, installation, and maintenance of telecommunication facilities, the use of spare conduit or related facilities of the Division of Highways as part of any longitudinal access or wireless access granted to a right-of-way pursuant to this section. The compensation must be, without limitation:
(1) At fair market value;
(2) Competitively neutral;
(4) Open to public inspection;
(5) Calculated based on the geographic region of this state, taking into account the population and the impact on private right-of-way users in the region;
(6) Paid in cash or with in-kind compensation, or a combination of cash and in-kind compensation; and
(7) Paid in a lump-sum payment or in annual installments, as agreed to by the telecommunications carrier and the Division of Highways.
(d) The division may consider adjustments for areas the division determines, in conjunction with the Broadband Enhancement Council, are unserved or underserved areas.
(e) For the purpose of determining the amount of compensation a telecommunications carrier must pay the Division of Highways for the use of spare conduit or excess conduit or related facilities of the Division of Highways as part of any longitudinal access or wireless access granted to a right-of-way pursuant to this section, the division shall:
(1) Conduct an analysis once every five years, in accordance with the rules, policies, or guidelines of the Division of Highways, to determine the fair market value of a right-of-way to which access has been granted pursuant to this section; and
(2) If compensation is paid in-kind, determine the fair market value of the in-kind compensation based on the incremental costs for the installation of conduit and related facilities.
(e) The value of in-kind compensation, or a combination of money and in-kind compensation, must be equal to or greater than the amount of monetary compensation that the Division of Highways would charge if the compensation were paid solely with money.
§17-2E-4. Highway safety.
(a) The Division of Highways, in its sole discretion, may deny any longitudinal access or wireless access if such access would compromise the safe, efficient, and convenient use of any road, route, highway, or interstate in this state for the traveling public.
(b) Any longitudinal access or wireless access to a right-of-way granted by the Division of Highways pursuant to this article does not abrogate, limit, supersede, or otherwise affect access granted or authorized pursuant to the division’s rules, policies, and guidelines related to accommodation of utilities on highways’ rights-of-way and adjustment and relocation of utility facilities on highway projects.
§17-2E-5. Joint use.
(a) The Division of Highways shall provide for the proportionate sharing of costs between telecommunications carriers for joint trenching or trench sharing based on the amount of conduit innerduct space or excess conduit that is authorized in the agreements entered into pursuant to this article. If the division plans to use the trench it shall pay its proportional share unless it is utilizing the trench as in-kind payment for use of the right-of-way.
(b) Upon application for a permit, the carrier will notify, by email, the West Virginia Broadband Enhancement Council and all other carriers on record with the West Virginia Broadband Enhancement Council of the application. Other carriers have 30 calendar days to notify the applicant if they wish to share the applicant’s trench. This requirement extends to all underground construction technologies.
(c) The carrier shall also meet the following conditions for a permit:
(1) The telecommunications carrier will be required to place, at its sole expense, a Class II legal advertisement, in accordance with §59-3-2(a) of this code, and of a form and content approved by the Division of Highways, in the local project area newspaper, in the Charleston newspaper, on industry and the Division of Highways’ websites, and within other pertinent media, announcing the general scope of the proposed installation within the right-of-way and providing competing telecommunications carriers the opportunity to timely express an interest in installing additional telecommunication facilities during the initial installation. The legal advertisement is to run at least two consecutive weeks, and the telecommunications carrier is to notify the division of any interest of other parties received.
(2) If a competing telecommunications carrier expresses interest in participating in the project, an agreement between the two (or more) telecommunications carriers will be executed by those entities, outlining the responsibilities and financial obligations of each, with respect to the installation within the right-of-way. A copy of the executed agreement shall be provided to the Division of Highways.
(3) The telecommunications carrier that placed the legal advertisement is responsible for resolving in good faith all disputes between any competing telecommunications carriers that timely responded to the advertisement and that wishes to install facilities within the same portion of the rights-of-way to be occupied. Should a dispute arise between the initial telecommunications carrier and a competing telecommunications carrier, the initial telecommunications carrier will attempt to mediate the dispute. Any dispute that is not resolved by the telecommunications carriers shall be adjudicated by the Public Service Commission.
(d) If two or more telecommunications carriers are required or authorized to share a single trench, each carrier in the trench must share the cost and benefits of the trench in a fair, reasonable, competitively neutral, and nondiscriminatory manner. This requirement extends to all underground construction technologies.
§17-2E-6. Monetary and in-kind compensation.
(a) All monetary compensation collected by the Division of Highways pursuant to this article shall be deposited in the State Road Fund.
(b) In-kind compensation paid to the Division of Highways under an agreement entered into pursuant to this article may include, without limitation:
(1) Conduit or excess conduit;
(3) Dark fiber;
(4) Access points;
(5) Telecommunications equipment or services;
(6) Bandwidth; and
(7) Other telecommunications facilities as a component of the present value of the trenching.
(c) The Division of Highways shall value any in-kind compensation based on fair market value at the time of installation or review.
(1) The telecommunications facility received as in-kind payment has not been used within 10 years of it installation; and
(2) The Commissioner of the Division of Highways determines that the division does not have an immediately foreseeable need for the telecommunications facility.
(e) Upon determining that it is appropriate to dispose of the telecommunications facility, the division shall determine its current fair market value. The division shall offer the provider or providers who made the in-kind payment the option to purchase any telecommunications facility obtained from such provider. If the provider or providers do not purchase the telecommunications facility, it shall be offered for public auction in the same manner as the division auctions excess rights-of-way.
§17-2E-7. Multiple carriers in a single trench.
(a) If the Division of Highways enters into an agreement with two or more telecommunications carriers, a consortium or other entity whose members, partners or other participants are two or more telecommunications carriers, or, if the division requires or allows two or more telecommunications carriers to share a single trench, the agreements entered into pursuant to this article shall require that the telecommunications carriers share the obligation of compensating the Division of Highways on a fair, reasonable and equitable basis, taking into consideration the proportionate uses and benefits to be derived by each telecommunications carrier from the trench, conduits, and other telecommunications facilities installed under the agreements.
(b) The provisions of §17-2E-7(a) of this code do not prevent the Division of Highways from requiring every participating telecommunications carrier to bear joint and several liability for the obligations owed to the Division of Highways under the agreements.
(c) Any agreement requiring two or more telecommunications carriers to share the obligation of compensating the Division of Highways shall provide the division the right to review and audit the records and contracts of and among the participating carriers to ensure compliance with §17-2E-7(a) of this code.
§17-2E-8. Existing policies.
(a) The requirements set forth in this article do not alter existing rules, policies, and procedures relating to other utility facilities within a right-of-way or for accommodating utility facilities or other facilities under the control of the Division of Highways.
(b) The Division of Highways may consider the financial and technical qualifications of a telecommunications carrier when determining specific insurance requirements for contractors authorized to enter a right-of-way to construct, install, inspect, test, maintain, or repair telecommunications facilities with longitudinal access or wireless access to the right-of-way.
(c) If the Division of Highways authorizes longitudinal access, wireless access, or the use of, and access to, conduit or related facilities of the division for construction and installation of a telecommunications facility, the division may require an approved telecommunications carrier to install the telecommunications facility in the same general location as similar facilities already in place, coordinate their planning and work with other contractors performing work in the same geographic area, install in a joint trench when two or more telecommunications carriers are performing installations at the same time and equitably share costs between such carriers.
(d) The placement, installation, maintenance, repair, use, operation, replacement, and removal of telecommunications facilities with longitudinal access or wireless access to a right-of-way or that use or access conduit or related facilities of the division shall be accommodated only when in compliance with this code and Division of Highways rules, policies and guidelines.
(e) Access to a right-of-way must be administered in compliance with the Telecommunications Act of 1996, 47 U.S.C. §151, et seq., as amended.
ARTICLE 4. STATE ROAD SYSTEM.
§17-4-17b. Relocation of public utility lines on highway construction projects.
(a) Whenever the division reasonably determines that any public utility line or facility located upon, across, or under any portion of a state highway needs to be removed, relocated, or adjusted in order to accommodate a highway project, the division shall give to the utility reasonable notice in writing as mutually agreed, but not to exceed 18 months, directing it to begin the physical removal, relocation, or adjustment of such utility obstruction or interference at the cost of the utility, including construction inspection costs and in compliance with the rules of the division and the provisions of §29A-3-1 et seq. of this code.
(b) If the notice is in conjunction with a highway improvement project, it will be provided at the date of advertisement or award. Prior to the notice directing the physical removal, relocation, or adjustment of a utility line or facility, the utility shall adhere to the division’s utility relocation procedures for public road improvements which shall include, but not be limited to, the following:
(1) The division will submit to the utility a letter and a set of plans for the proposed highway improvement project;
(2) The utility must within a reasonable time submit to the division a written confirmation acknowledging receipt of the plans and a declaration of whether or not its facilities are within the proposed project limits and the extent to which the facilities are in conflict with the project;
(3) If the utility is adjusting, locating, or relocating facilities or lines from or into the division’s right-of-way, the utility must submit to the division plans showing existing and proposed locations of utility facilities.
(4) The utility’s submission shall include with the plans a work plan demonstrating that the utility adjustment, location, or relocation will be accomplished in a manner and time frame established by the division’s written procedures and instructions. The work plan shall specify the order and calendar days for removal, relocation, or adjustment of the utility from or within the project site and any staging property acquisition or other special requirements needed to complete the removal, relocation, or adjustment. The division shall approve the work plan, including any requests for compensation, submitted by a utility for a highway improvement project if it is submitted within the established schedule and does not adversely affect the letting date. The division will review the work plan to ensure compliance with the proposed improvement plans and schedule.
(c) If additional utility removal, relocation, or adjustment work is found necessary after the letting date of the highway improvement project, the utility shall provide a revised work plan within 30 calendar days after receipt of the division’s written notification of the additional work. The utility’s revised work plan shall be reviewed by the division to ensure compliance with the highway project or improvement. The division shall reimburse the utility for work performed by the utility that must be performed again as the result of a plan change on the part of the division.
(d) Should the utility fail to comply with the notice to remove, relocate, or adjust, the utility is liable to the division for direct contract damages, including costs, fees, penalties, or other contract charges, for which the division is proven to be liable to a contractor caused by the utility’s failure to timely remove, relocate, or adjust, unless a written extension is granted by the division. The utility shall not be liable for any delay or other failure to comply with a notice to remove, relocate or adjust that is not solely the fault of the utility, including, but not limited to, the following:
(1) The division has not performed its obligations in accordance with the division’s rules;
(2) The division has not obtained all necessary rights-of-way that affect the utility;
(3) The delay or other failure to comply by the utility is due to the division’s failure to manage schedules and communicate with the utility;
(4) The division seeks to impose liability on the utility based solely upon oral communications or communications not directed to the utility’s designated contact person;
(5) The division changes construction plans in any manner following the notice to remove or relocate and the change affects the utility’s facilities; or
(6) Other good cause, beyond the control of and not the fault of the utility, including, but not limited to, labor disputes, unavailability of materials on a national level, act of God, or extreme weather conditions.
(e) In order to avoid construction delays and to create an efficient and effective highway program, the division may schedule program meetings with the public utility on a quarterly basis to assure that schedules are maintained.
(f) If a utility that is required by law to bear all or a portion of its own relocation costs elects to pursue a reimbursement agreement with the division pursuant to this subsection and provides the division with sufficient evidence to demonstrate that the utility is not adequately staffed, equipped, or capitalized to perform such relocation work with its own forces or contractors at a time convenient to and in coordination with the associated highway project, the division may pay for the associated relocation costs, including but not limited to design engineering, design review, construction, and inspection costs, out of the State Road Fund: Provided, That the utility shall reimburse the division in full for such portion of the relocation costs that it is required by law to bear within two years of the completion of the highway project. The division shall deduct from the utility’s reimbursement amount any costs resulting from work performed as a result of plan changes made by the division. Before the division may pay any relocation costs, the division and the utility shall enter into a written reimbursement agreement containing terms that are mutually acceptable to the division and the utility seeking the reimbursement agreement.
(1) Preliminary engineering design work associated with utility relocations to be paid for by the division pursuant to a reimbursement agreement shall be completed by any of the following methods:
(A) The division’s or the utility’s internal forces;
(B) A consultant selected by the division if the contract is administered by the division: Provided, That the selected consultant shall be pre-approved by the utility; or
(C) Inclusion as part of the highway construction contract let by the division as agreed to by the utility: Provided, That the subcontractor performing the preliminary engineering design work associated with the relocation is pre-approved by the utility.
(2) Utility relocation construction work paid for by the division pursuant to a reimbursement agreement shall be completed by either of the following methods:
(A) A contract awarded by the division to the lowest qualified bidder based on an appropriate competitive solicitation: Provided, That the lowest qualified bidder for utility relocation construction work is pre-approved by the utility; or
(B) Inclusion as part of the highway construction contract let by the division as agreed to by the utility: Provided, That the subcontractor performing the utility relocation construction work is pre-approved by the utility.
(3) All design and construction work paid for by the division pursuant to a reimbursement agreement is subject to the reasonable inspection and acceptance of the utility, whose acceptance shall not be unreasonably withheld, and shall be performed in accordance with the specifications and standards required by the utility.
(4) All relocation work performed pursuant to a reimbursement agreement shall conform to applicable state and federal laws or regulations.
(5) The provisions of this subsection are completely voluntary and shall not be interpreted to require any utility to enter into a reimbursement agreement with the division or avail itself of the options authorized by this subsection.
(6) The division may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, and the division may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code in order to comply with this subsection.
§17-4-17e. Utility relocation on state highway construction projects financed by proceeds of bonds or notes issued before July 1, 2021.
Subject to the provisions of §17-4-17d of this code, and notwithstanding any other provisions to the contrary, whenever the Commissioner of Highways determines that any utility facility located upon, across, above, or under any portion of a state highway needs to be relocated in order to accommodate a highway project funded, in whole or in part, with proceeds of bonds or notes issued by the division, commissioner, West Virginia Parkways Authority, or the State of West Virginia on or after January 1, 2018, and on or before July 1, 2021, the commissioner shall notify the utility owning or operating the facility, which shall relocate the facility in accordance with this article and in accordance with the cost-sharing provisions of this section. The utility shall bear 85 percent of any such relocation costs, and the Division of Highways shall bear 15 percent of any such relocation costs. The division’s share shall be paid out of the State Road Fund or paid with other eligible funds, and shall be considered a cost of the highway project: Provided, That nothing in this section shall alter or amend the responsibility of the division to pay for the cost of utility facilities relocation when such costs are incurred to accommodate a highway project and such utilities maintain pre-existing property rights in their facilities’ present location.