ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 740
(By Senators Unger, Fanning, White, Deem and Facemyer)
____________
[Originating in the Committee on Finance;
reported March 28, 2005.]
_____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5B-4-1, §5B-4-2,
§5B-4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9
and §5B-4-10, all relating to conducting an inventory and
developing coordinated deployment and operation of technology
infrastructure within this state; legislative findings and
purpose; definitions; reporting requirements; rule-making
authority; exemptions from disclosure of confidential
information; creating Joint Legislative Oversight Commission
on Transportation and Infrastructure; creating Innovation
Center; appointment and qualifications of Chief Officer of
Innovation Center; powers and duties of Innovation Center;
reporting requirements; appointment and duties of task force;
construction of article; and reservation of powers.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5B-4-1, §5B-4-2, §5B-
4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9 and §5B-
4-10, all to read as follows:
ARTICLE 4. ELECTRONIC TELECOMMUNICATION OPEN INFRASTRUCTURE ACT.
§5B-4-1. Legislative findings; Purpose.
(a) This article is known as the Electronic Telecommunication
Open Infrastructure Act and shall be referred to as "ETOPIA".
(b) The Legislature finds and declares that the internet
revolution is driving today's economy and that information
technology offers increased economic opportunities, higher living
standards, more individual choices and wider and more meaningful
participation in government and public life. The past decade has
brought considerable advancement in digital communications and the
way people communicate worldwide. Accordingly, digital
communications in general, and the internet in particular, are
becoming increasingly important to the efficiency and effectiveness
of private and public sector entities. With the advent of the
internet and its various commercial, educational, medical and
cultural applications, the ability of people in all parts of this
state to access the internet has become an important component in
the ability of the state and its people and institutions to remain
competitive in the information-based global economy. Internet access is a major concern for rural health care. Telemedicine
gives health care providers the ability to connect with patients at
home and to share data with medical experts in academia and large
urban hospitals in this state and country, thereby greatly
enhancing the level of health care in these areas. Internet access
is also a concern for rural education. Access to the internet will
complement the learning experiences of children in rural areas by
giving them a window to the world and allowing them to gather data
from the information superhighway which would not otherwise be
available to them. Moreover, internet access will give rural
children planning to attend college a direct connection to academic
information provided online by institutions of higher education in
this state and throughout this country. The benefits of the
internet are useless to people and businesses who are neither
connected to nor able to access the information superhighway.
Advanced ultra-high capacity network infrastructure will attract
investment capital to the cities and towns of West Virginia, in
particular those that house our research institutes, universities,
colleges and community colleges. Intergovernmental cooperation in
public-private partnership is an effective method to approach
common development where high technology services are not available
and will not be available. Implementing a coordinated approach to
advanced infrastructure will connect West Virginia directly to
global markets and enable West Virginia to attract and retain high-caliber knowledge workers and bypass other regions of the country
in prosperity and economic expansion. Further, another public need
is to develop and implement technology infrastructure that supports
homeland security and public safety and continuity of government in
the event of emergencies. In particular, first responders
increasingly require ubiquitous wireless broadband coverage for
safety, security and public health applications. The Legislature
finds and declares that efficient and comprehensive development of
technology infrastructure is linked to the coordinated deployment
and operation of information systems, information technology,
information equipment and telecommunications systems and that the
management, goals and purposes of government are furthered by the
completion of an inventory of information systems, information
technology, information equipment, telecommunications related
services and systems and generally technology infrastructure and
linked information systems across government. The Legislature
further finds and declares that technology infrastructure is
essential to business and economic development within the state.
Therefore, it is a purpose of this article to create, as an
integral part of the West Virginia Development Office, the
Innovation Center with the authority to advise, make
recommendations, coordinate research and development efforts
throughout the state and build sustainable communities through
technology infrastructure. The Legislature further finds technology infrastructure promotes economic development. Technology
infrastructure can make distance far less important than it
historically has been, entrepreneurs can choose to live in small
towns and rural communities and still engage in global data
transmission marketplace. Advanced infrastructure can allow
products and services developed in our private industry and our
research institutes to reach a global marketplace and for capable
entrepreneurs, engineers and executives to build business and
careers in our state. Advanced infrastructure can also attract new
businesses and industries to our state. Advanced, ultra high-
capacity infrastructure can also provide services more efficiently,
lowering the costs for consumers and providing a wider array of
communication, education, health, safety, security, business,
government and cultural services. The Legislature finds that
advanced technology infrastructure is vital if West Virginia
communities are to survive and prosper in the global economy. The
Legislature finds that while basic internet services are available
in many cities and towns in West Virginia, there are rural areas
and communities where broadband services are lacking, and that
ultra-high capacity infrastructure required for major economic
expansion is not ubiquitous. The Legislature hereby further finds
and declares that, despite advances that have been made in
technology deployment by private industry, problems of
implementation of technology infrastructure so transcends the boundary lines of governmental units that no single unit can plan
for the solution of all of these problems without affecting other
units of government; that intergovernmental cooperation in public-
private partnership is an effective method to approach common
development; where advanced services are not available; and that
assistance of the State may be needed to attract investment in West
Virginia and to make the most effective use of local, state,
federal and private resources. It is therefore the purpose of this
article to: (1) Ensure that technology infrastructure and related
services are provided and provide the widest possible diversity of
information and resources to the general public; (2) advance the
exercise of rights under the First Amendment of the Constitution of
the United States; (3) enhance the development and widespread use
of technological advances; (4)achieve the objectives and policies
necessary for the orderly growth and development of the state; (5)
allow broadband and other advanced services to be provided; (6)
enable government to offer or partner with private entities to
provide broadband, wireless, ultra-high capacity infrastructure or
advanced services; (7) provide information and develop a knowledge
base for government entities and private industry to help ensure
the success of advanced technology infrastructure ventures; and (8)
facilitate intergovernmental cooperation and public-private
partnerships to accomplish the purposes of this article where
closed markets have failed to serve the people of West Virginia.
§5B-4-2. Definitions.
The following terms, wherever used or referred to in this
article, shall have the following meanings unless a different
meaning clearly appears from the context:
(a) "Information equipment" includes central processing units,
front-end processing units, miniprocessors, microprocessors and
related peripheral equipment such as data storage devices,
networking equipment, services, routers, document scanners, data
entry equipment, terminal controllers, data terminal equipment,
computer-based word processing systems other than memory
typewriters;
(b) "Information systems" mean computer-based information
equipment and related services designed for the automated
transmission, storage, manipulation and retrieval of data by
electronic or mechanical means;
(c) "Information technology" means data processing and data
communications hardware, software, services, supplies, personnel,
maintenance and training and includes the programs and routines
used to employ and control the capabilities of data processing
hardware;
(d) "Local government" means any municipality, county, metro
or regional government, or entities or affiliates of such entities
in the State of West Virginia;
(e) "Person" means an individual, partnership, association, company, trust, organization, or corporation;
(f) "Public body" means a department, division, agency,
bureau, board, commission, court in its nonjudicial functions only,
council, institution, spending unit, authority or other
instrumentality thereof of whatever description of the State of
West Virginia, or any county court or tribunal or commission in
lieu thereof, or any county board of education, or any incorporated
municipality, metro or regional government, or any other political
subdivision; and
(g) "Technology infrastructure" means information systems,
information technology, information equipment and facilities,
equipment, lines, and services designed for or used for the
transmission, emission or reception of signs, signals, writings,
images or sounds of intelligence of any nature by wire, radio,
microwave, or other electromagnetic or optical systems, related
hardware, software, and programming, and specifically including,
but not limited to, all features, facilities, equipment, systems,
functions, programming, and capabilities, and technical support
used in providing or related to:
(1) Cable service (as defined in 47 U. S. C. §522(6));
(2) Telecommunications service (as defined in 47 U. S. C.
§153(46);
(3) Information service (as defined in 47 U. S. C. §153(20);
(4) Advanced services (as defined in 47 CFR 51.5);
(5) Broadband service; or
(6) Internet Protocol enabled services, however classified by
the Federal Communications Commission.
§5B-4-3. Technology Infrastructure needs assessment and inventory;
agency and local government cooperation; information
gathering; reporting requirements; rule-making
authority.
(a) The state encourages the coordinated deployment and
operation of technology infrastructure for present and future use.
Therefore, it is necessary for the state to determine, and maintain
an ongoing, continually updated record of, the nature and extent of
its technology infrastructure comprising information systems,
information equipment, and information technology, the demands on
its technology infrastructure, and those governmental entities
which use or desire to use the resources of the technology
infrastructure providing information services, media services,
advanced services, broadband services, internet, internet protocol
enabled services, telecommunications services or similar services
or support.
(b) The Secretary of the Department of Administration shall
develop systems and processes for maintaining accurate information
on the state of the technology infrastructure in the state on an
ongoing basis and conduct an infrastructure resources survey of the
deployment and operation of technology infrastructure in this state. The Secretary shall determine the form and format of the
information submitted, including the use of electronic submissions.
(c) To facilitate the infrastructure resources survey the
Secretary of the Department of Administration, in consultation with
the Chief Officer of the Innovation Center established in this
article, shall propose emergency and legislative rules in
accordance with article three, chapter twenty-nine-a of this code.
These rules may include: (1) The manner of reporting the
information; (2) promulgation of a form or forms for reporting
purposes; (3) a means of providing training to individuals
responsible for the completion and submission of the information on
the proposed form; (4) a means of reporting back to individual
participating public bodies, from time to time, at the request of
a public body, on findings specific to that body to allow the
public body to evaluate independently the information provided; (5)
a limitation that the information is to be used solely for the
purposes of this article; (6) safeguards to protect the
confidential information as provided in section four of this
article; (7) methodology for collection of information and the
analysis of the information; and (8)protocols for an annual update
of the infrastructure resources survey including information
collection, analysis and reporting thereof by the Department of
Administration.
(d) Every public body shall complete an infrastructure resources survey no later than the first day of October, two
thousand five and a survey each year thereafter as provided in
rules promulgated pursuant to this section.
(e) The Secretary shall file annually a report with the joint
legislative oversight commission on transportation and
infrastructure created in section five of this article. The report
shall generally advise the joint oversight commission on
transportation and infrastructure about the deployment and
operation of technology infrastructure in this state and to make
recommendations on policy and statutory changes that may be needed.
The report shall include the following: (1) A discussion of the
connectivity, priorities, and interoperability of the technology
infrastructure owned, leased or used by public bodies; (2) a
discussion of the technology infrastructure that is owned, leased,
operated, or used by the public bodies of the state; (3) a
discussion of technology infrastructure as it affects homeland
security, public safety and health, systems reliability and
providing continuity of government operations; (4) a discussion of
the technology infrastructure identifying potential market demand
areas where expanded resources may be expected; (5) a discussion of
practices or suggestions to coordinate development of
infrastructure related to technology infrastructure and the
deployment of services between the public bodies through the
coordinated delivery of these systems; and (6) any other discussion that may be beneficial in adequately assessing technology
infrastructure.
(f) To the extent technology infrastructure information is
readily provided by private persons or otherwise available, the
Secretary shall utilize and incorporate that data to fulfill the
reporting requirements of this section.
(g) The provisions of this section shall be of no force or
effect after the thirty-first day of December, two thousand eight.
§5B-4-4. Confidential information; exemption from disclosure.
(a) Information submitted by a public body as part of the
survey that may be a trade secret or otherwise confidential shall
be identified by that body as confidential information. The public
body claiming confidentiality shall provide written justification
to the Secretary at the time the information is submitted stating
the reasons for confidentiality and why the information should not
be released.
(b) In addition to records or documents considered
confidential under this code, confidential information means
records, reports or information, or a particular portion or any
combination or aggregation thereof, that if made public would
present a threat to the safety and security of any system or
component relating to the technology infrastructure and related
systems.
(c) Information designated as confidential and the written justification shall be maintained in a file separate from the
general records related to the public body. The confidential
information will be exempt from disclosure requirements under this
code.
(d) Information designated as confidential may be released to
the Department of Administration, its employees and agents when
compiling and analyzing the infrastructure resources survey
information as necessary to develop the report required by this
article. Any individual receiving information designated
confidential shall protect the information as confidential.
§5B-4-5. Joint legislative oversight commission on transportation
and infrastructure.
The President of the Senate and the Speaker of the House of
Delegates shall each designate five members of their respective
houses, at least two of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of transportation and
infrastructure matters, specifically including, but not limited to,
the ongoing oversight of the management and coordination of the
deployment and operation of infrastructure related to technology.
This commission shall be known as the "Joint Legislative Oversight
Commission on Transportation and Infrastructure" and shall
regularly investigate and monitor all matters relating to
transportation and infrastructure.
§5B-4-6. Innovation center; chief officer; appointment and
qualifications.
There is hereby created an office within the West Virginia
Development Office called the Innovation Center. There shall be a
chief officer of the Innovation Center, who shall be appointed by
and shall serve at the will and pleasure of the Governor. The
chief officer shall have knowledge in the fields of information
technology and telecommunications, business development in these
fields and an understanding of the special demands upon
entrepreneurship, industry, commerce, culture, public-private
partnerships and local governments.
§5B-4-7. Powers and duties Innovation Center.
(a) The primary responsibility of the Innovation Center is to
foster and support economic development and the advancement and
commercialization of new and emerging technologies.
(b) The Innovation Center has the authority and power to
provide consulting and additional services, including, but not
limited to, evaluation of technology, verification and assessment
of market applications, grant administration for any person engaged
in public-private collaborations with the West Virginia Development
Office pertaining to technology advancement and commercialization
activities and research into new areas of economic development
relating to technology, technology infrastructure and
telecommunications.
(c) The Innovation Center may receive and accept from any
public body or person or entity of any nature whatsoever grants to
be expended in accomplishing the objectives of this article and to
receive and accept from the state appropriations and grants from
any public body and from any other source, aid or contributions of
either money, property or other things of value to be held, used
and applied only for the purposes for which the grants and
contributions may be made or collect fees for consulting services
rendered to any public body.
(d) The Innovation Center may accept and expend any gift,
grant, contribution, bequest, endowment or other money for the
purposes of this article and to make a maximum effort to encourage
external support for the Center's programs. Any transfer of
endowment or other assets to the Center shall be formalized in a
memorandum of agreement to assure, at a minimum, that any
restrictions governing the future disposition of funds are
preserved.
(e) The Secretary of the Department of Commerce may promulgate
rules to fulfill the purposes of this section and to carry into
effect the purpose and scope of the Innovation Center. Any new
rules promulgated by the Secretary shall be promptly submitted to
the Joint Commission created in section five of this article.
These rules are not subject to the provisions of chapter twenty-
nine-a of this code, but shall be filed with the Secretary of State.
§5B-4-8. Need for study; reporting requirements; information
gathering; appointment and duties of task force.
(a) The Innovation Center shall enhance well-being,
prosperity, economic growth and community development through the
ongoing study and research into and development of best known
methods regarding the management practices, human factors and
cultural changes related to the implementation, operation and
utilization of technology, technology infrastructure, and related
services. For the purposes of this section, best known methods
refers to plans that outline strategies and activities designed to
continue, diversify or expand the economic base of the state as a
whole, create jobs, develop a highly capable work force, enhance
productivity, facilitate business access to capital, including
venture capital and capital markets, advertise and market the
resources offered by the state with respect to the technology needs
of business and industry, facilitate cooperation among state
government, entrepreneurship efforts, local governments, public-
private partnerships, universities and colleges and leverage
funding from sources other than the state, including federal and
private sources.
(b) The Chief Officer of the Innovation Center shall serve as
the Chairman of the task force required by this section. The
Governor shall appoint the remaining members of the task force no later than first day of June, two thousand five, and the remaining
members of the task force are to serve at the governor's will and
pleasure. The task force is to be comprised of an official or
employee of a municipality in which the rapid advancement of
technology infrastructure and services could expand economic
opportunity, a representative of local government, a representative
of a research university with an active role in entrepreneurial and
innovating technology development and commercialization, a county
commissioner or his or her designee in a county, in which the rapid
advancement of technology infrastructure and services could expand
economic opportunity, a representative of the Public Service
Commission or the staff of the Public Service Commission, the
Director of the Consumer Advocate Division of the Public Service
Commission, a representative of a nonrural exchange carrier as
defined by the rules and regulations of the Federal Communications
Commission, a representative of a rural exchange carrier as defined
by the rules and regulations of the Federal Communications
Commission, a representative of a incumbent local exchange carrier
as defined by the rules and regulations of the federal
communications commission, a representative of the cable service
industry, a provider of advanced services that require ultra-high
capacity infrastructure.
(c) The task force shall study whether the best known methods
in private industry and public policy to deploy and utilize technology infrastructure in those areas of the state where
competitive or advanced services to the state that have proven
beneficial in other areas around the world and that reasonably and
practically can be deployed in those areas of the state that where
the population would most benefit from the services. Upon
completion of a study of those best known methods, the Chief
Officer shall file an initial, preliminary report and proposed
legislation to carry out the discussion and findings of the report
with the Joint Legislative Oversight Commission on Transportation
and Infrastructure created in section five of this article no later
than the first day of November, two thousand five. The report
shall include the following: (1) A discussion that outlines the
efforts of private industry to date, the efforts and investment
that might be expected of private industry in the reasonably
foreseeable future, sources of capital for expanded efforts and
cost of capital for such investments; (2) a discussion that
outlines strategies and activities designed to continue, diversify
or expand the resources offered by the state with respect to the
technology needs of business, industry and local government in a
manner that is practical and affordable, and furthers the economy
of the state; (3) a discussion that outlines strategies to
facilitate cooperation among state government, local government,
entrepreneurship efforts, public-private partnerships, colleges and
universities, with respect to the technology needs of business and industry for services that are not available; (4) a discussion of
the management and utilization of technology infrastructure
identifying potential growth areas where expanded resources may be
expected; (5) a discussion of practices or methods to coordinate
development and utilization of technology infrastructure and the
deployment of technology infrastructure and related technology
through the coordinated delivery of these systems in a manner that
encourages private investment;
(6) a discussion promoting
technology infrastructure system projects through local government
and public private partnerships; (7) a discussion promoting
ubiquitous and coordinated deployment of technology infrastructure
across the state; (8) a discussion regarding tax credits to promote
technology infrastructure system projects in the state; (9) a
discussion regarding technology infrastructure related to homeland
security, and for the purposes of providing continuity of
governmental operations in the event of emergencies; (10) a
discussion promoting efficient delivery of technological advances
and new services throughout the state in order to improve the
health, safety, general welfare, and quality of life of all state
residents and businesses; (11) a discussion promoting distance
learning in the schools of this state; (12) a discussion regarding
local government and public-private partnerships to issue bonds for
technology infrastructure development;
and (13) any other
information that may be beneficial in adequately assessing technology available in determining the need for and the
preparation of technology infrastructure plans.
(d) The Chief Officer shall, based upon the annual written
findings of the task force, report annually to the Joint Oversight
Commission on Transportation and Infrastructure to advise the
Commission about the deployment and operation of technology
infrastructure in this state and to make recommendations on policy
and statutory changes that may be needed, in the format and under
the criteria outlined in subsection (c) of this section.
(e) In developing its study, the Innovation Center shall
consider input from private industry and resources and technical
support available through other agencies, both public and private,
including, but not limited to, the state college and university
systems, the West Virginia Housing Development Fund, the West
Virginia Economic Development Authority, the West Virginia
Parkways, Economic Development and Tourism Authority, the West
Virginia Chamber of Commerce, West Virginia Jobs Investment Trust,
venture capital funds of which the State of West Virginia is a
limited partner, regional planning and development councils,
regional partnership for progress councils and state
appropriations.
§5B-4-9. Innovation Center to provide technical and funding
assistance for innovation; consulting services;
contractual and joint venture agreements.
(a) The Innovation Center may provide assistance, including
funding assistance to develop technology infrastructure, and
related technology through a matching grant program. The Innovation
Center shall establish criteria for awarding matching grants within
the limits of funds appropriated by the Legislature for the program
or as available from other sources.
(b) The Innovation Center may provide technical assistance,
including consulting services for a fee to one or more public
bodies pertaining to the development of technology and technology
infrastructure.
(c) The Innovation Center is authorized to enter into
contractual or joint venture agreements with one or more persons
and public bodies pertaining to the development of technology and
technology infrastructure provided the agreements may not be
considered a debt of the state or a pledge of the credit of the
state.
§5B-4-10. Reservations of powers.
Nothing in this article shall be construed to limit the
authority of local government, private entities, or public-private
partnerships to implement or develop technology infrastructure.
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