ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 312
(By Senators Chafin and Love)
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[Originating in the Committee on Government Organization;
reported March 1, 1995.]
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A BILL to amend and reenact sections four and six, article eighteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section thirty-one, all relating to the West Virginia cable television systems act; cable franchising authority; when the West Virginia cable television advisory board may become the franchise authority; increasing membership of the board and requirements; and providing for late fees.

Be it enacted by the Legislature of West Virginia:
That sections four and six, article eighteen, chapter five of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section thirty-one, all to read as follows:

ARTICLE 18. WEST VIRGINIA CABLE TELEVISION SYSTEMS ACT.

§5-18-4. Cable franchise required; franchising authority.

(a) No person may construct, operate or acquire a cable system, or extend an existing cable system outside its designated service area, without first obtaining a cable franchise from a franchising authority as provided in this article.
(b) Any person operating a cable system on the effective date of this article without a franchise shall, within sixty days of the effective date of this article, notify the board in writing setting forth: (1) The name, business address and telephone number of the cable operator; (2) the principals and ultimate beneficial owners of the cable system or systems; (3) the geographic location and service area of any cable system operated by such person; and (4) the number of subscribers within the cable system or systems. If the board shall not have been appointed and organized within sixty days of the effective date of this article, then such filing shall be made with the public service commission where such documents shall be retained for delivery to the board following the appointment and organization of its members.
(c) The board shall, upon receipt of such information, determine the appropriate franchising authority or authorities for the purposes of the consideration of the issuance of a franchise to such cable operator or operators and shall notify the appropriate franchising authority or authorities and any such cable system operator of the franchise application procedures to be followed by the respective parties. Any such cable operator shall, within sixty days of receipt of such notice from the board, make formal application to the appropriate franchising authority or authorities for a franchise in accordance with the provisions of this article.
(d) The franchising authority shall be the municipality in which a cable system is to be constructed, operated, acquired or extended, or if there be no such municipality or if the municipality so elects not to act as a franchising authority, then the franchising authority shall be the county commission of the county in which such cable system is to be constructed, operated, acquired or extended: Provided, That nothing herein shall prohibit any county commission of a county in which a municipality acting as a franchising authority is located from also acting as a franchising authority for any cable system to be constructed, operated, acquired or extended within the jurisdiction of such county commission, nor prohibit any county commission of a county acquiring the franchise authority from a municipality from electing to transfer such authority to the board.
(e) If any municipality or county commission elects not to act as the franchise authority on or before the first day of September, one thousand nine hundred ninety-five, the board shall become the franchise authority. The election not to act as the franchise authority, shall be considered to have been made by a municipality or county if by the first day of September, one thousand nine hundred ninety-five, no valid franchise agreement exists between any municipality or county commission and any cable operator operating a cable system within the municipality's or county commission's jurisdiction. Where more than one cable system is in operation in a municipality or county, this subsection applies only to the municipality's or county commission's authority to be the franchise authority for any cable system not having a franchise agreement on the first day of September, one thousand nine hundred ninety-five, and this subsection will not otherwise invalidate an existing franchise. Further, when the board acts as franchising authority following a municipality's or county commission's election not to act as the franchising authority, the board shall remit to the municipality or county commission the amount of any franchise fee allowed under 47 U.S.C. §542, and paid by the cable operator, except that the board may retain a portion of the franchise fee not to exceed one percent of the cable operator's gross revenues derived from the operation of the cable system: Provided, That to be eligible to receive the payment of any excess franchise fee the municipality or county commission must, within ninety days following receipt of written notice from the board that the board will be acting as franchise authority, pass an ordinance or enter an order establishing the franchise fee to be imposed on the cable operator. The board shall give thirty days' written notice to a cable operator for whom the board becomes the franchise authority under this section to file an application for franchise with the board. Failure of a cable operator to file an application for franchise with the board is a violation of this article.

§5-18-6. West Virginia cable television advisory board created; appointments and terms of members; meetings; vacancies; quorum.

(a) There is hereby created a cable review board to be known as the "West Virginia Cable Television Advisory Board" which board shall, in consultation with the attorney general's office, implement the provisions of this article and consider subscriber complaints in accordance with the provisions of section twenty-five of this article.
(b) The board shall consist of seven members, who shall be residents of this state, and who shall be appointed as follows:
(1) The governor shall appoint one member to represent the viewpoint of the public service commission. When the member is to be appointed, the governor shall request from the public service commission a list of three nominees for such position. A summary of the qualifications of each nominee shall be submitted with each list. When the completed list of nominees is submitted in accordance with the provisions hereof, the governor shall make his or her appointment from the persons so nominated.
(2) The governor shall appoint one member to represent the viewpoint of those cable operators whose cable system or systems in the aggregate have five thousand subscribers or more, and one member to represent the viewpoint of cable operators whose cable system or systems in the aggregate have less than five thousand subscribers. The governor shall request from the trade association representing cable operators in this state a list of three nominees for each such position of the board. All nominees shall be persons with special experience and competence in cable television operations. A summary of the qualifications of each nominee shall be submitted with each list. When the completed list of nominees for each position is submitted in accordance with the provisions hereof, the governor shall make his or her appointments from the persons so nominated.
(3) The governor shall appoint one member to represent the viewpoint of municipalities within the state and one member to represent the counties within the state. The governor shall request from the associations representing the municipalities and counties, respectively, a list of three nominees for such position. A summary of the qualifications of each nominee shall be submitted with each list. When the completed list of nominees is submitted in accordance with the provisions hereof, the governor shall make his or her appointments from the persons so nominated.
(4) The governor shall appoint two members from the general public who shall be from different political parties and who shall not represent the viewpoint of the members appointed in accordance with the provisions of subdivision (2) or (3) of this subsection.
(5) The governor shall appoint four members, three of whom shall be from each congressional district of this state. The governor shall request from the speaker of the House of Delegates and the president of the Senate a list of three nominees for each position. A summary of qualifications for each nominee shall be submitted with each list. When the completed list of nominees is submitted in accordance with the provisions thereof, the governor shall make his or her appointments from the persons so nominated.
(6) All appointments made by the governor under the provisions of this section shall be with the advice and consent of the Senate.
(c) Upon the initial appointment of members, the governor shall specify the length of the beginning term which each member shall serve, pursuant to the following formula:
(1) With regard to the two members appointed in accordance with the provisions of subdivisions (2) and (3), subsection (b) of this section, one member shall serve a beginning term of two years, and one member shall serve a beginning term of three years;
(2) The two members appointed in accordance with the provisions of subdivision (3), subsection (b) of this section shall serve a term of two years;
(3) The member appointed in accordance with the provisions of subdivision (1), subsection (b) of this section shall be appointed to serve a beginning term of one year; and
(4) Following the beginning terms provided for in this subsection, members shall be nominated and appointed in the manner provided for in this section and shall serve for a term of three years. Members are eligible for reappointment.
(d) The board shall meet at least once during each calendar quarter, or more often as may be necessary, and at other times upon the call of the chairman or upon the request of any three members of the board. The chairman shall set the agenda for all meetings. No meeting of the board may be conducted unless said notice and agenda are given to the board members at least five days in advance, as provided herein, except in cases of emergency, as declared by the chairman, in which event members shall be notified of the board meeting and the agenda in a manner to be determined by the chairman. Four members of the board shall constitute a quorum and no action may be taken by the board unless agreed to by a majority of the members present.
(e) Each member of the board shall take and subscribe to the oath or affirmation required pursuant to section 5, article IV of the constitution of West Virginia. A member may be removed by the governor for substantial neglect of duty or gross misconduct in office, after written notice and an opportunity to reply.
(f) The board shall meet within thirty days of the initial appointments to the board, at a time and place to be determined by the governor, who shall designate a member to preside at that meeting until a chairman is elected. At its first meeting, the board shall elect a chairman and such other officers as are necessary.
(g) The board shall, within six months after the appointment of the initial board, promulgate rules for its procedure and to otherwise carry out its duties under the provisions of this article. Such rules shall be promulgated as legislative rules subject to legislative rule-making review and subject to the administrative procedures act.
(h) The board may subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of books, logs, papers, records or other evidence needed for the performance of the board's duties or exercises of its power under the provisions of section twenty-five of this article.
(i) The board may request the attorney general to provide legal advice to the board and the attorney general shall comply with the request. The board shall employ an executive secretary to be compensated from the cable advisory board fund created under the provisions of this article in an amount to be fixed by the board. Such executive secretary shall be in charge of its offices which shall be within the public service commission, shall be responsible to the board for the maintenance of such offices and shall be the custodian of all documents filed by cable operators and of any complaints or other documents which may be filed with the board in accordance with the provisions of this article. The board is also authorized to employ and assign the necessary professional and clerical staff and such hearing examiners as may be necessary to conduct hearings in such various locations in the state, under the provisions of section twenty-five of this article, in order to provide a convenient forum for persons making subscriber complaints to be heard. The salaries and expenses of any such staff and hearing examiners shall be paid from the fees assessed and collected under provisions of this article.

§5-18-31. Late fees.

(a) For the purpose of this section, "late fees" includes any fee, assessment or charge levied by a cable operator for the purpose of recovering the costs of billing and processing balances not paid in full within ten days after the due date of a delinquent subscriber's monthly bill by the scheduled due date of a delinquent subscriber's monthly bill.
(b) Cable operators that elect to charge late fees may only charge an amount not exceeding ten dollars, which is five percent of the unpaid amount of the balance, but in any event not less than one dollar.
(1) A fixed rate fee not to exceed five dollars may be charged on the unpaid balance after the scheduled due date;
(2) A percentage fee not to exceed five percent may be charged on the unpaid balance after the scheduled due date.
(c) Cable operators must provide written notice to cable subscribers of the operator's late fee policy prior to charging any late fees. One of the following methods shall be used:
(1) For companies with monthly, bi-monthly or quarterly billing periods, notice shall be printed on or supplied with each billing statement detailing the scheduled due date and the amount or percentage rate of any possible late fee;
(2) For companies with annual or coupon book billing systems, a written notice must be supplied to each subscriber at least annually detailing the due date and amount or percentage rate of any possible late fee. This information may be included with any notice required by this article or by federal law to be delivered to subscribers.
(d) Any late fee charged by a cable operator may be collected only once on any individual billing statement for a billing period, however long it remains unpaid.
(e) A late fee may not be imposed unless the scheduled due date of a payment is at least fifteen days following the date the bill or statement for such payment is mailed to the subscriber by placing the same, postage prepaid, in the United States mail.