Senate Bill 701 History
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 701
(By Senators Tomblin, Mr. President, and Caruth, By Request of
(Introduced February 18, 2008; referred to the Committee on
Transportation and Infrastructure; and then to the Committee on
to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §31-15C-1, §31-15C-2,
§31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-
15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12 and §31-
15C-13, all relating to the deployment of broadband to the
remaining unserved areas of the state; setting forth
legislative findings and purpose; providing definitions;
establishing the Broadband Deployment Council and its powers,
duties and responsibilities; creating the Broadband
Development Fund; categorizing areas of the state according to
broadband access; retention of outside expert consultant to
assist in categorization and other functions; stimulation of
demand through public outreach and education; providing funding guidelines; emergency rule-making authority;
establishing project requirements and applications; requiring
public notice; limiting liability; protecting confidentiality
of trade secrets and proprietary business information;
criminal penalties; and expiration of the council.
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 §31-15C-1, §31-15C-2,
§31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8,
§31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12 and §31-15C-13 , all
to read as follows:
ARTICLE 15C. BROADBAND DEPLOYMENT.
§31-15C-1. Legislative findings and purpose.
The Legislature finds as follows:
(1) That it is a primary goal of the Governor, the Legislature
and the citizens of this state, by the year two thousand ten, to
make every municipality, community, and rural area in this state,
border to border, accessible to the Internet through the expansion
and extension of broadband services and technology.
(2) Although market-driven deployment has extended broadband
access to almost all of West Virginia's cities, towns, and other
concentrated areas, it is some of the most rural areas of the state
that remain unserved.
(3)That based on the same network principles that providers
of telephony services have faced since the inception of the
telecommunications industry, high fixed costs and technological
limitations permit broadband networks to extend into rural areas
only so far before the level of demand in those sparsely populated
areas no longer justifies the construction costs.
(4) That West Virginia's unique topography and demographic
make-up further hinders the provision of broadband access to rural
areas of the state. Specifically, West Virginia's mountains and
hills significantly increase the cost of deploying broadband
infrastructure. At the same time, West Virginia's high-percentage
of elderly and low-income households are the least likely to own
computers or subscribe to Internet service. In light of these
topographical and demographic challenges, any attempt to fill the
gaps in West Virginia's broadband availability must be organized
according to the levels of demand in the various unserved areas to
which service is sought to be extended.
(5) Accordingly, it is the purpose of the Legislature to
provide for the development of a strategy and mechanism to be
employed in extending broadband access to every West Virginian by
stimulating demand for those services and by constructing the
necessary infrastructure to meet that demand.
(6) In implementing this initiative, progress by market forces and industry is to be respected, and the Legislature intends that
governmental assistance and funding is to be used only in those
areas without broadband service and not to compete with private
industry or to duplicate or displace broadband service in areas
already served or where industry feasibly can be expected to offer
services in the reasonably foreseeable future.
For the purposes of this article,
(1)"Broadband" or "broadband service" means any service
providing advanced telecommunications capability with either a
downstream data rate or upstream data rate of at least 200 kilobits
per second, that does not require the end-user to dial up a
connection, and for which the transmission speeds are based on
regular available bandwidth rates, not sporadic or burstable rates,
with a minimum downstream-to-upstream data ration of 10:1 for
services with a downstream data rate of up to five megabits per
second, and with a minimum upstream data rate of 500 kilobits per
second for services with a downstream data rate of five megabits
per second or greater.
(2)"Broadband deployment project" means either (A) a project
to provide broadband services to a type 2 and/or type 3 unserved
area, as defined in section six of this article; or (B) a project
to undertake activities to promote demand for broadband services, computers and other Internet enabled devices.
(3)"Downstream data rate" means the transmission speed from
the service provider source to the end-user.
(4)"Upstream data rate" means the transmission speed from
the end-user to the service provider source.
(5)"unserved area" means a community that has no access to
§31-15C-3. Broadband Deployment Council established; members of
council; administrative support.
(a)The Broadband Deployment Council is hereby established.
The council is a governmental instrumentality of the state. The
exercise by the council of the powers conferred by this article and
the carrying out of its purpose and duties shall be considered and
held to be, and are hereby determined to be, essential governmental
functions and for a public purpose. The council is created under
the West Virginia Infrastructure & Jobs Development Council for
administrative, personnel and technical support services.
(b)The council shall consist of seven members, designated as
(1)The Governor or his or her designee;
(2)The Secretary of Commerce or his or her designee;
(3)The Chief Technology Officer of the Office of Technology;
(4)Four public members that serve at the will and pleasure
of the Governor and are appointed by the Governor with the advice
and consent of the Senate as follows:
(i)One member representing rural communities;
(ii)One member representing telecommunications providers
providing broadband services in the state;
(iii) One member representing cable operators providing
broadband services in the state; and
(iv) One member representing broadband equipment or device
(c)The Governor or his or her designee shall chair the
council and appoint one of the other council members to serve as
vice chair. In the absence of the Governor the vice chair shall
serve as chair. The council shall appoint a secretary-treasurer
who need not be a member of the council and who shall keep records
of it proceedings.
(d)The council may appoint committees or subcommittees to
investigate and make recommendations to the full council. Members of the committees or subcommittees need not be members of the
(e)Four members of the council shall constitute a quorum and
the affirmative vote of at least the majority of those members
present shall be necessary for any action taken by vote of the
(f)No member of the council who serves by virtue of his or
her office shall receive any compensation or reimbursement of
expenses for serving as a member. The four public members and
members of any committees or subcommittees are entitled to be
reimbursed for actual and necessary expenses incurred for each day
or portion thereof engaged in the discharge of his or her official
duties in a manner consistent with the guidelines of the Travel
Management Office of the Department of Administration.
§31-15C-4. Powers and duties of the council generally.
(a)In addition to the powers set forth elsewhere in this
article, the council is hereby granted, has and may exercise all
powers necessary or appropriate to carry out and effectuate the
purpose and intent of this article. The council shall have the
power and capacity to:
(1)Provide consultation services to project sponsors in connection with the planning, acquisition, improvement,
construction or development of any broadband deployment project;
(2)To make and execute contracts, commitments and other
agreements necessary or convenient for the exercise of its powers,
including but not limited to the hiring of consultants to assist in
the mapping of the state, categorization of areas within the state,
and evaluation of project applications: Provided, That the
provisions of article three, chapter five-a of this code do not
apply to the agreements and contracts executed under the provisions
of this article;
(3)Acquire by gift or purchase, hold or dispose of real
property and personal property in the exercise of its powers and
performance of its duties as set forth in this article;
(4)Receive and dispense funds appropriated for its use by
the Legislature or other funding sources or solicit, apply for and
receive any funds, property or services from any person,
governmental agency or organization to carry out its statutory
(5)Perform any and all other activities in furtherance of
(b) The council shall exercise its powers and authority to bring broadband service to those areas without broadband service.
The council may not duplicate or displace broadband service in
areas already served or where private industry feasibly can be
expected to offer services in the reasonably foreseeable future. In
no event may projects or actions undertaken pursuant to this
article be used to finance or support broadband or other services
in competition with private industry.
§31-15C-5. Creation of the Broadband Deployment Fund.
All moneys collected by the council, which may, in addition to
appropriations, include gifts, bequests or donations, shall be
deposited in a special revenue account in the State Treasury known
as the Broadband Deployment Fund. The fund shall be administered
by and under the control of the council. Expenditures from the fund
shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article two, chapter eleven-b of this code: Provided,
That for the fiscal year ending the thirtieth day of June, two
thousand nine, expenditures are authorized from collections rather
than pursuant to appropriations by the Legislature.
§31-15C-6. Categorization of areas within state for broadband
Based on its analysis of mapping, broadband demand, and other
relevant data, the council shall designate unserved areas of the
state as being one of three distinct types. These types are as
(1) Type 1 unserved area: an area in which broadband may be
deployed by service providers in an economically feasible manner;
(2) Type 2 unserved area: an unserved area in which broadband
may be deployed by broadband service providers and other entities
in an economically feasible manner, provided some form of state
moneys is made available; and
(3) Type 3 unserved area: an unserved area in which, at
present, cable or wireline broadband cannot be deployed in an
economically feasible manner and an intermodal approach employing
other technologies, such as satellite and wireless, is required to
provide that area with high-speed internet access.
§31-15C-7. Retention of outside expert consultant.
In order to assist the council with the highly technical task
of categorizing the areas of the state and evaluating and
prioritizing projects, the council shall retain an outside expert
consultant qualified to map the state on the basis of broadband
availability, to evaluate, categorize and prioritize projects, to assist in public outreach and education in order to stimulate
demand, to advise the council on the granting or denying of funding
to projects, and to provide other support and assistance as
necessary to accomplish the purposes of this article.
provisions of article three, chapter five-a of this code, shall not
apply to the retention of an outside expert consultant pursuant to
§31-15C-8. Stimulation of demand through public outreach and
In order to implement and carry out the intent of this
article, the council may take such actions as it deems necessary or
advisable in order to stimulate demand through public outreach and
education in unserved areas.
The council shall consider the views,
if offered, of affected members of the public, including private
§31-15C-9. Development of guidelines and application for funding
assistance; emergency rulemaking authority.
(a) In order to implement and carry out the intent of this
article in type 2 and type 3 unserved areas, the council shall
promulgate emergency rules pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the council in
evaluating any request by a project sponsor for funding assistance
to plan, acquire, construct, improve or otherwise develop a
broadband deployment project in a type 2 or type 3 unserved area.
The guidelines shall include the following factors: (1) the cost-
effectiveness of the project; (2) the economic development benefits
of the project; (3) the availability of alternative sources of
funding that could help finance the project, including but not
limited to private grants or federal funding and the efforts
undertaken to obtain such funding; (4) if the project requires the
construction of a network, the applicant's ability to operate and
maintain such network; (5) the degree to which the project advances
statewide broadband access and other state broadband planning
goals; (6) the proposed technologies, bandwidths, upstream data
rates and downstream data rates; (7) the estimated date the project
would commence and be completed; (8) how the proposed project
compares to alternative proposals for the same unserved area with
regard to the number of people served, the amount of financial
assistance sought, and the long-term viability of the proposed
project; and (9) any other consideration the council deems
(b)Under no circumstances may the council's guidelines allow
for the approval of any project for broadband service that does not include a minimum downstream
transmission rate of 600 kilobits per
second (Kbps) and a minimum downstream-to-upstream ratio of 8.5:1
for services with a downstream rate of up to five megabits per
second (Mbps). In those cases where a project's broadband service's
downstream rate is five Mbps or greater, the council's guidelines
must require a minimum upstream data rate of 588 Kbps and allow
information applications and market demands to dictate acceptable
downstream-to-upstream data ratios.
(c) The council shall create an application form that shall be
used by all project sponsors requesting funding assistance from the
council to plan, acquire, construct, improve or otherwise develop
broadband deployment projects in type 2 or type 3 unserved areas.
The application form shall contain all information required by all
state agencies that will be required to issue permits and
certificates regarding the project. The application shall require
the project sponsor to set forth the proposed location of the
project; the type(s) of unserved area(s) the project proposes to
address, the estimated total cost of the project; the amount of
funding assistance required and the specific uses of the funding;
other sources of funding available or potentially available for the
project; information demonstrating the need for the project; that
the proposed funding of the project is the most economically
feasible and viable alternative to completing the project; and such other information as the council considers necessary.
§31-15C-10. Requirements for project funding assistance; review of
project application by council; competitive applications.
(a) Toapply for or receive any funding assistance for a
broadband deployment project from the council, the project sponsor
seeking the funding assistance shall submit a completed application
to the council on the form prepared for such purpose by the council
pursuant to section nine of this article. Provided, That any
project sponsor which has a broadband deployment project with
either acceptable bids or all funding in place on the effective
date of this article is not required to comply with the provisions
of this section.
(b) Once the council has categorized unserved areas pursuant
to section six of this article, project sponsors may submit
applications for funding assistance for projects in those unserved
areas. Upon receiving its first application for a categorized
unserved area, the council shall post notice of such application
with the Secretary of State for sixty days so as to allow for
competing applications to be submitted to the council. Within
thirty days of the close of the aforementioned sixty-day notice
period, the council shall review the applications and either (i)
approve funding for one or more projects after determining that said funding would constitute an appropriate investment of public
funds, or (ii) if the council determines that a proposed project is
not eligible for funding assistance or is otherwise not an
appropriate or prudent investment of state funds, the council shall
deny the project funding request. Prior to approving or denying
any funding request, the council shall seek the advice of its
expert consultant retained pursuant to section seven of this
article, but the council is not bound by that advice. The council
shall also consider the views, if offered, of affected members of
the public, including private industry.
(c) In reviewing each application, the council may use the
engineering, financial and technical expertise of outside
consultants in addition to the respective staffs of the government
agencies and private-sector entities represented on the council.
§31-15C-11. Limitation of liability.
No person is subject to antitrust or unfair competition
liability based on membership or participation in the council,
which provides an essential governmental function and enjoys state
§31-15C-12. Protection of proprietary business information.
(a)Broadband deployment information provided to the council or its consultants and other agents, including but not limited to
physical plant locations, subscriber levels, and market penetration
data, constitutes proprietary business information and, along with
any other information that constitutes trade secrets, shall be
exempt from disclosure under the provisions of chapter twenty-nine-
b of this code: Provided, That the information is identified as
confidential information when submitted to the council.
(b)Trade secrets or proprietary business information
obtained by the council from broadband providers and other persons
or entities shall be secured and safeguarded by the state. Such
information or data shall not be disclosed to the public or to any
firm, individual or agency other than officials or authorized
employees of the state. Any person who makes any unauthorized
disclosure of such confidential information or data is guilty of a
misdemeanor and, upon conviction thereof, may be fined not more
than five thousand dollars or confined in a correctional facility
for not more than one year, or both.
(c)The official charged with securing and safeguarding trade
secrets and proprietary data for the council is the Chief
Technology Officer, who is authorized to establish and administer
appropriate security measures. The council chair shall designate
two additional persons to share the responsibility of securing trade secrets or proprietary information. No person will be allowed
access to trade secrets or proprietary information without written
approval of a minimum of two of the three authorized persons
§31-15C-13. Expiration of council.
The council shall continue to exist until the thirty-first day
of December, two thousand eleven, unless sooner terminated,
continued or reestablished pursuant to an Act of the Legislature.
NOTE: The purpose of this bill is to create the Broadband
Deployment Council and to develop a strategy and mechanism to be
employed in extending broadband to every West Virginian by
stimulating demand for broadband services and by constructing the
necessary infrastructure to meet that demand.