H. B. 2791
(By Delegate Seacrist)
____________
[Introduced March 27, 1997; referred to the Committee
Government Organization.]
____________
A BILL to repeal sections six and seven, article eighteen,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections three, eight and twenty-eight, article eighteen of
said chapter; and to amend and reenact section one, article
two, chapter twenty-four of said code, all relating to
abolishing the West Virginia cable television advisory board
and transferring jurisdiction of cable television services
to the West Virginia public service commission.
Be it enacted by the Legislature of West Virginia:
That sections six and seven, article eighteen, chapter five
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections three, eight
and twenty-eight, article eighteen of said chapter be amended and reenacted; and that section one, article two, chapter twenty- four of said code be amended and reenacted, all to read as
follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 18. WEST VIRGINIA CABLE TELEVISION SYSTEMS ACT.
§5-18-3. Definitions.
As used in this article:
(1) "Applicant" means a person who initiates an application
or proposal.
(2) "Application" means an unsolicited filing for a cable
franchise.
(3) "Basic cable service" means any service tier which
includes the retransmission of local television broadcast
signals.
(4) "Board" means the West Virginia cable television
advisory board created under the provisions of this article West
Virginia public service commission.
(5) "Cable franchise" means a nonexclusive initial
authorization or renewal thereof issued pursuant to this article,
whether the authorization is designated as a franchise, permit, order, contract, agreement or otherwise, which authorizes the
construction or operation of a cable system.
(6) "Cable operator" means any person or group of persons:
(A) Who provides cable service over a cable system and directly
or through one or more affiliates owns a significant interest in
the cable system; or (B) who otherwise controls or is responsible
for, through any arrangement, the management and operation of a
cable system.
(7) "Cable service" means: (A) The one-way transmission to
subscribers of video programming or other programming service;
and (B) subscriber interaction, if any, which is required for the
selection of video programming or other programming service.
(8) "Cable system" means any facility within this state
consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is
designed to provide cable service which includes video
programming and which is provided to multiple subscribers within
a community, but does not include: (A) A facility that serves
only to retransmit the television signals of one or more
television broadcast stations; (B) a facility that serves only
subscribers in one or more multiple unit dwellings under common
ownership, control or management, unless that facility or
facilities uses any public right-of-way; or (C) a facility of a
public utility subject, in whole or in part, to the provisions of chapter twenty-four of this code, except to the extent that those
facilities provide video programming directly to subscribers.
(9) "County commission" means the commissioners composing
the county commission in pursuance of section nine, article IX of
the constitution of this state within whose jurisdiction there
exists a cable system or where such cable system is hereafter
constructed, operated, acquired or extended.
(10) "Facility" includes all real property, antennas, poles,
supporting structures, wires, cables, conduits, amplifiers,
instruments, appliances, fixtures and other personal property
used by a cable operator in providing service to its subscribers.
(11) "Franchising authority" means a municipality, a county
commission or the West Virginia cable television advisory board
public service commission.
(12) "Institution of higher education" means an academic
college or university accredited by the North Central Association
of Colleges and Schools.
(13) "Municipality" means any municipal corporation duly
chartered in the state of West Virginia within whose jurisdiction
there exists a cable system or where such the cable system is
hereafter constructed, operated, acquired or extended.
(14) "Other programming service" means information that a
cable operator makes available to all subscribers generally.
(15) "Person" means an individual, partnership, association, joint stock company, trust, corporation or governmental agency.
(16) "Proposal" means a filing solicited by the franchising
authority for a cable franchise.
(17) "Public, educational or governmental access facilities"
means: (A) Channel capacity designated for public, educational
or governmental uses; and (B) facilities and equipment for the
use of that channel capacity.
(18) "Public place" includes any property, building,
structure or water to which the public has a right of access and
use.
(19) "School" means an academic and noncollege type regular
or special education institution of learning established and
maintained by the department of education and the arts or
licensed and supervised by that department.
(20) "Service area" means the geographic area for which a
cable operator has been issued a cable franchise.
(21) "Video programming" means programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station.
§5-18-8. Duties of the public service commission.
The West Virginia cable television advisory board public
service commission shall:
(1) Develop and maintain a statewide plan for the provision of cable services, setting forth the objectives which the
commission deems determines to be in the best interest of the
citizens of this state;
(2) To the extent permitted by, and not contrary to
applicable federal law, rules: and regulations:
(A) Prescribe standards for procedures and practices which
franchising authorities shall follow in considering the issuance
of cable franchises, which standards shall provide for the forms
of applications and proposals, the filing of all franchise
applications, proposals and related documents as public records,
with reasonable notice to the public that such the records are
open to inspection and examination during reasonable business
hours; the holding of a public hearing, upon reasonable notice to
the public, at which the applications or proposals shall be
examined and members of the public and interested parties are
afforded a reasonable opportunity to express their views thereon;
the rendition of a written report by the franchising authority
made to the public, setting forth the reasons for its decision in
awarding or not awarding the franchise; and such any other
procedural standards governing the issuance of cable franchises
mandated by the provisions of this article or as the board may
otherwise deem determine necessary or appropriate to assure
maximum public participation and competition and to protect the
public interest;
(B) Prescribe minimum standards for inclusion in franchises,
including maximum initial and renewal terms; minimum channel
capacity; provisions regarding public, educational or
governmental access facilities; a requirement that no such
franchise may be exclusive; standards necessary or appropriate to
protect the interests of viewers of free broadcast television and
the public generally, which prohibit or limit cable operators
from prohibiting or entering into agreements prohibiting the sale
or other transfer of rights for the simultaneous or subsequent
transmission over free broadcast television; and such any other
standards for inclusion in franchises as the board shall deem
determine necessary or appropriate to protect the public
interest, including any provision regulating the rates for cable
services to the extent that the same is not in conflict with
federal law, rules or regulations;
(C) Prescribe standards by which a franchising authority
shall determine whether an applicant possesses: (i) The
technical ability; (ii) the financial ability; (iii) the good
character; and (iv) other qualifications necessary to operate a
cable system in the public interest;
(D) Prescribe standards for the construction and operation
of cable systems, which standards shall be designed to promote:
(i) Safe, adequate and reliable service to subscribers; (ii) the
construction and operation of systems consistent with the most advanced state of the art; (iii) a construction schedule
providing for maximum penetration as rapidly as possible within
the limitations of economic feasibility; (iv) the construction of
systems with the maximum practicable channel capacity, facilities
for local program origination, facilities to provide service in
areas conforming to various community interests, facilities with
the technical capacity for interconnection with other systems
within regions as established in the board's statewide plan and
facilities capable of transmitting signals from subscribers to
the cable system or to other points; and (v) the prompt handling
of inquiries, complaints and requests for repairs;
(E) Prescribe such standards for the prohibition or
limitation of concentration of control over mass media and
communication companies and facilities and methods of enforcing
such any standards, as the board may determine to be necessary or
appropriate to protect the public interest: Provided, That
nothing contained herein shall be construed to authorize the
impairment of any existing rights of any mass media and
communication company or any subsidiary thereof;
(3) Provide advice and technical assistance to other
franchising authorities and community organizations in matters
relating to cable franchises and services;
(4) Establish minimum specifications for equipment, service and safety of cable;
(5) Represent the interests of citizens of this state before
the federal communication commission and make available
information to the public on communications developments at the
federal level;
(6) Stimulate and encourage cooperative arrangements among
organizations, institutions, counties and municipalities in the
development of public, educational or governmental access
facilities;
(7) Maintain liaison with the communications industry and
other parties, both public and private, having an interest
therein, other states and political subdivisions of this state to
promote the rapid and harmonious development of cable services as
set forth in the legislative findings and intent of this article;
(8) Undertake such studies as may be necessary to meet the
responsibilities and objectives of this article; and
(9) Implement the provisions of this article in a manner
which is cognizant of the differing financial and administrative
capabilities of cable systems of different sizes.
§5-18-28. Annual fees; effect of application and filing fees on franchise fees.
(a) Each cable operator shall pay to the board an annual fee
in an amount not less than twenty cents per subscriber or such greater annual fee as may be determined by the board. Such The
funds and all other funds to be paid to the board under the
provisions of this article shall be deposited into a special fund
designated the "cable advisory board fund". Such fund shall be
used for purposes of administering the provisions of this
article. To the extent permitted by federal law, the board may
prohibit cable operators from assessing subscribers for any
contribution toward the annual fee to be paid hereunder.
(b) Any filing fee required under the provisions of this
article and the annual fee to be paid to the board under the
provisions of this section, together with any franchise fee paid
to any franchising authority, may not exceed the maximum amount
for any franchise fee as set forth in 47 U.S.C. §542 as the same
is in effect on the effective date of this article.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1. Jurisdiction of commission; waiver of jurisdiction.
The jurisdiction of the commission shall extend to all
public utilities in this state, and shall include any utility
engaged in any of the following public services:
Common carriage of passengers or goods, whether by air,
railroad, street railroad, motor or otherwise, by express or
otherwise, by land, water or air, whether wholly or partly by land, water or air; transportation of oil, gas or water by
pipeline; transportation of coal and its derivatives and all
mixtures and combinations thereof with other substances by
pipeline; sleeping car or parlor car services; transmission of
messages by telephone, telegraph or radio; generation and
transmission of electrical energy by hydroelectric or other
utilities for service to the public, whether directly or through
a distributing utility; supplying water, gas or electricity, by
municipalities or others; sewer systems servicing twenty-five or
more persons or firms other than the owner of the sewer systems;
any public service district created under the provisions of
article thirteen-a, chapter sixteen of this code; toll bridges,
wharves, ferries; solid waste facilities; and any other public
service: Provided, That natural gas producers who provide
natural gas service to not more than twenty-five residential
customers are exempt from the jurisdiction of the commission with
regard to the provisions of such the residential service:
Provided, however, That upon request of any of the customers of
such natural gas producers, the commission may, upon good cause
being shown, exercise such authority as the commission may deem
determine appropriate over the operation, rates and charges of
such the producer and for such a length of time as the commission
may consider to be proper: Provided further, That the jurisdiction the commission may exercise over the rates and
charges of municipally operated public utilities is limited to
that authority granted the commission in section four-b of this
article: And provided further, That the decision-making
authority granted to the commission in sections four and four-a
of this article shall, in respect to an application filed by a
public service district, be delegated to a single hearing
examiner appointed from the commission staff, which hearing
examiner shall be authorized to carry out all decision-making
duties assigned to the commission by said sections, and to issue
orders having the full force and effect of orders of the
commission.
Jurisdiction of the West Virginia cable television systems
act is hereby transferred to the West Virginia public service
commission which shall administer the provisions of article
eighteen, chapter five of the code, in the place and stead of
what was formerly the West Virginia cable television advisory
board.
The commission may, upon application, waive its jurisdiction
and allow a utility operating in an adjoining state to provide
service in West Virginia when:
(1) An area of West Virginia cannot be practicably and
economically served by a utility licensed to operate within the state of West Virginia;
(2) Said area can be provided with utility service by a
utility which operates in a state adjoining West Virginia;
(3) The utility operating in the adjoining state is
regulated by a regulatory agency or commission of the adjoining
state; and
(4) The number of customers to be served is not substantial.
The rates the out-of-state utility charges West Virginia
customers shall be the same as the rate the utility is duly
authorized to charge in the adjoining jurisdiction.
The commission, in the case of any such utility, may revoke
its waiver of jurisdiction for good cause.
NOTE: The purpose of this bill is to transfer jurisdiction
of the West Virginia cable television advisory board to the West
Virginia public service commission.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.