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 unpaid by the scheduled due date of a delinquent
subscriber's monthly bill.
(b) Cable operators that elect to charge late fees must
use one of the following methods:
(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.