sb489 sub1

COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 489
(By Senators Love, Dempsey, Tomblin, Mr. President,
Bailey, Helmick, Bowman, Snyder, White, Rowe, Hunter, Prezioso, Ross, McKenzie, Facemyer, Sprouse, Weeks and Caldwell)
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[Originating in the Committee on Government Organization;
reported February 26, 2003.]

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A BILL to amend article sixteen-a, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section twenty-two-a; and to amend article two, chapter twenty-four of said code by adding thereto a new section, designated section eleven-c, all relating to authorizing the parkways authority to construct, maintain, operate and lease wireless communications towers; legislative findings; restrictions; requiring the parkways authority to obtain a certificate of public convenience and necessity from the public service commission before constructing, maintaining, operating and leasing any wireless communication towers; and authorizing the parkways authority to license space to carriers and charge fees.

Be it enacted by the Legislature of West Virginia:

That article sixteen-a, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section twenty- two-a; and that article two, chapter twenty-four of said code be amended by adding thereto a new section, designated section eleven- c, all to read as follows:
CHAPTER 17. ROADS AND HIGHWAYS.

ARTICLE 16A. WEST VIRGINIA STATEWIDE PARKWAYS, ECONOMIC DEVELOPMENT AND TOURISM AUTHORITY.

§17-16A-22a. Authority to construct, maintain, operate and lease wireless communications towers.

(a) The Legislature finds:

(1) That there is a lack of wireless communications coverage in some areas along parkways of this state and along roadways within seventy-five air miles of the parkways of this state despite the best efforts of industry and government;

(2) That this lack of wireless communications coverage not only inconveniences tourists and citizens in this state but also affects the ability of tourists and citizens to dial "911" emergency services and affects economic development efforts in the state;

(3) That the parkways authority is charged with the oversight of parkways projects, tourism projects and economic development projects under this article;

(4) That if wireless communications towers were constructed, maintained and operated at key locations along parkways of this state and along roadways within seventy-five air miles of the parkways of this state, wireless or other carriers might attach their communications equipment; and

(5) That leasing such wireless communications towers to wireless or other carriers would generate additional money to the parkways authority and also to the state.

(b) Therefore, the Legislature declares:

(1) That it is in the public interest to authorize the parkways authority to construct wireless communications towers at key locations along parkways of this state and along roadways within seventy-five air miles of the parkways of this state where private industry is unable to furnish wireless communications coverage;

(2) That it is in the public interest to authorize the parkways authority to lease space on such wireless communications towers to wireless or other carriers to attach their communications equipment;

(3) That it is in the public interest to use parkways authority's funds to construct, maintain and operate wireless communications towers to provide sufficient coverage; and

(4) That such funds should be used only to supplement, not to supplant, efforts of private industry.

(1) Construct, maintain and operate wireless communications towers at locations along parkways of this state and along roadways within seventy-five air miles of the parkways of this state but only in areas where private industry is unable to furnish coverage;

(2) Lease space on wireless communications towers to wireless or other carriers to access or attach their communications equipment. The parkways authority shall provide reasonable and nondiscriminatory access to all carriers to attach equipment to or otherwise utilize the towers;

(3) Charge fees, as set by the public service commission, for access to or attachment on the wireless communications towers. The initial fees may not exceed the reasonable and actual additional costs incurred by the parkways authority in supervising the attachments to the towers, as determined and approved by the public service commission. Any later monthly license fees, when market conditions warrant, must be based with reference to cost but may take into account the market value of a license to attach to the tower, as determined and approved by the public service commission, consistent with the legislative findings and declarations in this section. The parkways authority shall make application to the public service commission to implement or increase fees under this section; and

(4) Expend funds on wireless communications towers, consistent with the other provisions of this article, including the hiring of engineers or other professionals to assist in the design, planning, construction, implementation, maintenance and operation of wireless communications towers.

(d) Prior to any construction of wireless communications towers, the parkways authority shall first obtain a certificate of public convenience and necessity from the public service commission. The parkways authority is expressly authorized to prepare an application for a certificate and to take such other necessary action to obtain a certificate. The application must include a proper showing that the following conditions exist:

(1) That the construction and operation of the wireless communications tower is necessary for the safety of tourists and other persons using the parkways of this state or for the economic development of the state within seventy-five air miles of the parkways of this state;

(2) That market forces are such that private industry cannot reasonably be expected to construct wireless communications towers for adequate wireless coverage to promote such safety or economic development;

(3) That, if the wireless communications tower is constructed, wireless carriers will attach their telecommunications equipment to the tower, including a written commitment from at least one wireless carrier per tower to do so;

(4) That the construction, maintenance, operation and leasing of the wireless communications tower will be competitively neutral and will not favor wireless carriers over wire line carriers by providing an unfair subsidy from the state;

(5) That the construction, maintenance, operation and leasing of the wireless communications tower by the parkways authority will not compete with private industry; and

(6) That the public interest will be served by the construction, maintenance, operation and leasing of the wireless communications tower by the parkways authority.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.

§24-2-11c. Requirements for certificate of public convenience and necessity before parkways authority constructs wireless communications towers; power with respect to fees for tower access and attachment.

(a) The public service commission shall require a certificate of public convenience and necessity from the West Virginia parkways, economic development and tourism authority before the construction, maintenance, operation and leasing of wireless communications towers, pursuant to the provisions of article sixteen-a, chapter seventeen of this code.

(b) The public service commission may grant a certificate when the following conditions exist:

(5) That the construction, maintenance, operation and leasing of the wireless communications tower by the parkways authority will not compete with private industry;

(6) That the public interest will be served by the construction, maintenance, operation and leasing of the wireless communications tower by the parkways authority; and

(7) Such other reasonable conditions as required by the public service commission.

(c) The procedure for considering an application for a certificate is the same as the procedure provided under section eleven of this article, except as set forth in subsection (d) of this section.

(d) The public service commission may assist the West Virginia parkways, economic development and tourism authority in preparing an application for a certificate of public convenience and necessity and an application for the implementation of or increase in fees for attachment to the wireless communications towers. The commission may provide the necessary data and other information that the commission requires in connection with such application.

(e) The public service commission has the power to set fees to be charged by the West Virginia parkways, economic development and tourism authority for licenses to attach to wireless communications towers constructed under the provision of section twenty-two-a, article sixteen-a, chapter seventeen of this code.

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(NOTE: The purpose of this bill is to authorize the parkways authority to construct wireless communications towers within 75 miles of a parkway and lease such towers. The parkways authority is required to obtain a certificate of public convenience and necessity from the public service commission before constructing, maintaining, operating or leasing any wireless communication towers. Authorizing the public service commission to assist the parkways authority in preparing applications for a certificate or increase in fees.

These sections are new; therefore, strike-throughs and underscoring have been omitted.)