WEST virginia legislature

2018 regular session

Committee Substitute

for

House Bill 4447

By Delegates Shott, Hanshaw, Moore, C. Miller, Harshbarger, Fast, Lane, Hollen, Capito and Summers and Byrd

[Reported down February 23, 2018]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31G-5-1, §31G-5-2, §31G-5-3, §31G-5-4, §31G-5-5, §31G-5-6, §31G-5-7, §31G-5-8, §31G-5-9, §31G-5-10 and §31G-5-11, all relating to providing a uniform and efficient system of broadband conduit installation coinciding with the construction, maintenance or improvement of highways, and rights-of-way under the oversight of the Division of Highways; defining terms; providing procedures for broadband conduit installation in rights of way; providing for requirements for permits to install broadband conduit there; providing for agreements to install broadband conduit there and terms to be included; compensation due the Division of Highways for use of spare conduit or related facilities of the Division of Highways as part of any longitudinal access granted to a right-of-way pursuant to this section; defining the valuation of such compensation, including in-kind compensation; establishing limitations on longitudinal access consistent with highway safety and certain existing highway policies; delineating requirements for provider initiated construction; providing guidelines for joint use of trenches or trench sharing where multiple providers share a single trench and agreements governing the same; delineating provisions governing the Division of Highways offering a provider use of, and access to, its spare conduit; providing guidelines for the relocation and upgrade of existing telecommunications facilities within rights-of-way for state highways; providing guidelines for the installation of broadband conduit in covered highway construction projects; providing that the Division of Highways install broadband conduit on certain highway construction projects as recommended by the Broadband Enhancement Council; requiring coordination between the Broadband Enhancement Council and various state and local government entities for the installation, maintenance and improvement of the conduit; requiring development of a strategy and adoption of policies for deployment of broadband conduit to serve buildings and property of state, county, municipal and local units of government owned lands and buildings; and providing joint rule-making authority to the Broadband Enhancement Council and the Commissioner of the Division of Highways to further the ends of this statute.

Be it enacted by the Legislature of West Virginia:

ARTICLE 5. “DIG ONCE” POLICY.

§31G-5-1. Definitions.

In this article, unless the context otherwise requires:

(1) “Broadband conduit” or “conduit” means a conduit, innerduct or microduct for fiber optic cables that support facilities for broadband service.

(2) “Broadband service” has the same meaning as defined in §31G-1-2 of this code.

(3) “Cost-based rate” means a lease rate that is only comprised of direct and actual associated indirect costs of obtaining and maintaining the associated right-of-way and broadband conduit and must be equitably allocated among users of the associated right-of-way, broadband conduit and innerduct or microduct.

(4) “Council” means the Broadband Enhancement Council.

(5) “Covered highway construction project” or “project” means:

(A) A project to construct a new highway or bridge or to construct or relocate an additional lane or shoulder for an existing highway that is commenced after the effective date of this section and that receives funding from state or federal monies; or

(B) Any other project undertaken by the Division of Highways that opens, bores, or trenches alongside any state-owned infrastructure or right-of-way, including, but not limited to, surface mounting on bridges, overpasses, and other facilities where below ground placement is impossible or impractical.

(6) “Division” means the Division of Highways.

(7) “Longitudinal access” means access to or the use of any part of a right-of-way that extends generally parallel to the right-of-way.

(8) “Permit” means an encroachment permit issued by the Commissioner of the Division of Highways under the authority of §17-4-8 or §17-16-6 of this Code, and pursuant to the “Accommodation of Utilities On Highway Right Of Way and Adjustment and Relocation Of Utility Facilities On Highway Projects Policy”, or the equivalent policy, as currently enforced by the Division of Highways, that specifies the requirements and conditions for performing work in a right-of-way.

(9) “Provider” means an entity that provides for the sale or resale of wholesale or retail broadband services in this state.

(10) “Right-of-way” means land, property or any interest therein acquired or controlled by the Division of Highways for transportation facilities or other transportation purposes.

(11) “Spare conduit” means unused vacant conduit.

(12) “Statewide telecommunications purposes” means the development of the statewide network that meets the telecommunications needs of state agencies or serves another public purpose.

(13) “Telecommunications facility” means any cable, line, fiber, wire, conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmitting equipment, receiving equipment, power equipment or other equipment, system or device that is used to transmit, receive, produce or distribute a signal for telecommunications purposes via wireline, electronic or optical means.

(14) “Telecommunications provider” means a telecommunications provider:

(A) As determined by the Public Service Commission of West Virginia; or

(B) That meets Federal Communications Commission and industry carrier class service guidelines.

(15) “Utility facility” has the meaning ascribed to it in 23 C.F.R. § 645.207.

(16) “Vacant conduit” means conduit which has not had fiber optic cable installed.

§31G-5-2. Broadband conduit installation in rights of way; permits; agreements.

(a) Before obtaining a permit for the construction or installation of a telecommunications facility in a right-of-way, a telecommunications provider must enter into an agreement with the Division consistent with the requirements of this article.

(b) Before granting permitted longitudinal access to a right-of-way, the Division must:

(1) enter into an agreement with a telecommunications provider that is competitively neutral and nondiscriminatory as to other telecommunications providers, and

(2) issue a permit granting such access, consistent with the requirements of this article. Such an agreement must be approved by the Commissioner of the Division of Highways and, without limitation:

(A) Specify the terms and conditions for renegotiation of the agreement;

(B) Set forth the maintenance requirements for each telecommunications facility;

(C) Be nonexclusive; and

(D) Be for a term of not more than 30 years.

(c) Unless specifically provided for by some other provision of this article, in any agreement entered into consistent with the requirements of this article, the Division may not grant a property interest in a right-of-way.

§31G-5-3. Compensation; valuation of compensation.

(a) If required as part of the agreement, a telecommunications provider must compensate the Division for use of spare conduit or related facilities of the Division as part of any longitudinal access granted to a right-of-way pursuant to this section. Such compensation must be, without limitation:

(1) Fair and reasonable;

(2) Competitively neutral;

(3) Nondiscriminatory;

(4) Open to public inspection;

(5) Calculated in such manner as:

(A) to promote access by multiple telecommunications providers; and

(B) based on the geographic region of this State, taking into account the population and the impact on private right-of-way users in the region; and

(C) Once, calculated, set at an amount that encourages the deployment of digital infrastructure within this State;

(6) Such compensation is to be paid as follows:

(A) in monetary compensation, or with in-kind compensation, or a combination of monetary compensation and in-kind compensation; and all monetary compensation is to be paid according to the terms of the agreement.

(B) All monetary compensation collected by the Division pursuant to the provisions of this article must be deposited in the State Road Fund.

(C) In-kind compensation paid to the Division under an agreement entered into pursuant to this article may include, without limitation:

(i) Conduit or excess conduit;

(ii) Innerduct;

(iii) Dark fiber;

(iv) Access points;

(v) Telecommunications equipment or services;

(vi) Bandwidth; and

(vii) Other telecommunications facilities as a component of the present value of the trenching.

(b). For the purpose of determining the amount of compensation a telecommunications provider must pay the Division for the use of spare conduit or excess conduit or related facilities of the Division as part of any longitudinal access granted to a right-of-way pursuant to this section, the Division shall:

(1) Conduct an analysis once every 5 years, in accordance with the regulations of the Division of Highways, to determine the fair and reasonable value of a right-of-way to which access has been granted pursuant to this section; and

(2) If compensation is paid in-kind, in consultation with the Council, determine the value of any such in-kind compensation based on the incremental costs to the Division for the installation of conduit and related facilities, or the costs to the telecommunications provider for the installation of conduit and related facilities, as applicable; and

(3) The value of in-kind compensation or a combination of monetary compensation and in-kind compensation must be equal to or greater than the amount of monetary compensation that the Division would charge if the compensation were paid solely with monetary compensation.

(4) The Division shall value any in-kind compensation as follows:

(A) Electronic equipment, conduit, fiber and other telecommunications hardware and software must be valued on a present value basis at the estimated, reasonable cost to the telecommunications provider for procuring and installing such hardware and software.

(B) Excess conduit, fiber and other related facilities must be valued on a present value basis of the estimated, reasonable cost to the Division for procuring and installing such facilities.

(C) The present value of the estimated, reasonable cost to the telecommunications provider of joint trenching for placing conduit, excess conduit, fiber and other related facilities for the provider and the Division must be proportionately allocated to the Division pursuant to this paragraph and must equal some proportion of the total estimated, reasonable cost of the trenching work.  The Council and the Commissioner of the Division of Highways shall jointly promulgate rules to calculate and determine the valuation of this allocation, as hereinafter provided for in this article.

(D) The present value of the estimated, reasonable cost to a telecommunications provider for providing any other telecommunications facility which is shared jointly by the provider and the Division must be proportionately allocated to the Division as a component of the present value of the in-kind compensation. The Division shall determine the proportion to be allocated to the Division pursuant to this paragraph based on the percentage of use or benefit to which each party is entitled under the agreement entered into pursuant to this act.

(E) The Division shall determine the present value of warranties of equipment, conduit, fiber or other components and software, maintenance covenants and operating covenants, based on the reasonable, estimated cost of purchasing such warranties and covenants from manufacturers or other third parties.

(F) The total present value of the in-kind compensation is the sum of the present values determined in paragraphs (A) to (E) of this subdivision, inclusive.

(G) Any in-kind compensation received by the Division pursuant to this act must be used exclusively for statewide telecommunications purposes and may not be sold or leased in competition with telecommunications providers or Internet service providers. Fair and reasonable valuation of facilities owned by either the Division or a telecommunications provider offered as part of in-kind compensation must be determined by the Division.

(H) In determining the value of any in-kind compensation, the Division shall also consider any valuation or cost information provided by the telecommunications provider.

§31G-5-4. Highway Safety and Existing Highway Policies

(a) The Division shall not grant any longitudinal access to a right-of-way if such access would compromise the safe, efficient and convenient use of any road, route, highway or interstate in this State for the traveling public.

(b) Notwithstanding any other provision of law, the requirements set forth in this article, including any longitudinal access to a right-of-way granted by the Division, do not abrogate, limit, supersede or otherwise affect

(1) existing policies and procedures relating to other utility facilities within a right-of-way or for accommodating utility facilities or other facilities under the control of the Division; or

(2) access granted or authorized pursuant to the Division’s “Accommodation of Utilities On Highway Right Of Way and Adjustment and Relocation Of Utility Facilities On Highway Projects Policy: June 2007” or equivalent policy.

(c) The Division may consider the financial and technical qualifications of a provider when determining specific insurance requirements for contractors authorized to enter a right-of-way to construct, install, inspect, test, maintain or repair telecommunications facilities with longitudinal access to the right-of-way.

(d) If the Division authorizes longitudinal access, or the use of and access to conduit or related facilities of the Division for construction and installation of a telecommunications facility, the Division may require an approved provider to install the telecommunications facility in the same general location as similar facilities already in place, coordinate their planning and work with other contractors performing work in the same geographic area, install in a joint trench when two or more providers are performing installations at the same time and equitably share costs between such providers.

(e) The placement, installation, maintenance, repair, use, operation, replacement and removal of telecommunications facilities with longitudinal access to a right-of-way or that use or access conduit or related facilities of the Division must be accommodated only when in compliance with all requirements of §17-4-8 or §17-16-6 of this Code, the Division’s “Accommodation of Utilities On Highway Right Of Way and Adjustment and Relocation Of Utility Facilities On Highway Projects Policy: June 2007” or the equivalent policy, and any rules promulgated pursuant to this article; and

(f) Access to a right-of-way must be administered in compliance with the Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56-161, as amended.

§31G-5-5. Provider initiated construction.

(a) (1) Before obtaining a permit for the construction or installation of a telecommunications facility in a right-of-way, the provider must notify all other active providers of the permit application by submitting a notice of application to the Council.

(2)  As provided in §31G-5-6 of this Code, other providers shall have sixty days to notify the applicant provider of their desire to share the proposed facility.

(b) If other providers wish to join the construction, the provider applying for the permit shall act as the lead company and shall not be required to alter their preferred construction type or method to accommodate another carrier.

(c) The Council and the Commissioner of the Division of Highways shall jointly promulgate Rules governing the relationship between the providers, as hereinafter provided in this article.

(d) In exchange for the right of way and permitting costs, the Division shall receive compensation consistent with the provisions as set forth in §31G-5-3 of this Code.

§31G-5-6. Joint Use; Multiple Providers in A Single Trench

(a) (1) The Division shall provide for the proportionate sharing of costs between the Division and a telecommunications provider for joint trenching or trench sharing based on the amount of conduit innerduct space or excess conduit that is authorized by agreement entered into pursuant to section two of this article.

(2) Upon application for a permit, the provider will notify, by email, the Council and, by email, all other providers on record with the Council.  Other providers have sixty days to notify the applicant if they wish to share the applicant’s trench.  This requirement extends to all underground construction technologies, including, but not limited to, directional boring.

(3) If two or more telecommunications providers are required to share a single trench, each provider in the trench must share the cost and benefits of the trench in a fair, reasonable, competitively neutral and nondiscriminatory manner.  This requirement extends to all underground construction technologies, including, but not limited to, directional boring.

(b) (1) If the Division enters into an agreement with two or more telecommunications providers, a consortium of such providers, or other entity, whose members, partners ,or other participants are two or more telecommunications providers, or, if the Division requires two or more telecommunications providers to share a single trench, the agreements entered into pursuant to this act must require that the telecommunications providers share the obligation of compensating the Division on a fair, reasonable and equitable basis, taking into consideration the proportionate uses and benefits to be derived by each telecommunications provider from the trench, conduits and other telecommunications facilities installed under the agreements.

(2) The provisions of subdivision (1) of this subsection do not prevent the Division from requiring every participating telecommunications provider from bearing joint and several liability for the obligations owed to the Division under the agreements.

(3) Any agreement requiring two or more telecommunications providers to share the obligation of compensating the Division must provide the Division the right to review and audit the records and contracts of and among the participating providers to ensure compliance with subdivision (1) of this subsection.

§31G-5-7. Use of Spare Conduit

(a) (1) The Division may offer a telecommunications provider use of and access to any of its spare conduit and related facilities if the Division:

(A) Determines the spare conduit and related facilities are not and will not be needed for highway purposes;

(B) Receives fair compensation for the use of and access to the spare conduit and related facilities; and

(C) Offers such use and access in a competitively neutral and nondiscriminatory manner as to all similarly situated telecommunications providers.

(2) The Division shall establish rates of compensation for the use of and access to its spare conduit to ensure that the Division receives fair compensation for the value of its underground installations of conduit and related facilities. The compensation must be fair and reasonable to both the Division and the telecommunications provider, and charged in a competitively neutral and nondiscriminatory manner to all similarly situated telecommunications providers.

(3) Any compensation charged pursuant to this section must be set forth in an agreement entered into between the Division and the telecommunications provider.

(b) The Division shall:

(1) Determine the annual compensation to be paid by each telecommunications provider for use of its conduit and related facilities based on the present value of the estimated, reasonable cost to the Division of trenching to place conduit, fiber and other related facilities; and

(2) Conduct an analysis every 5 years to determine if there are any changes in the value of its spare conduit and related facilities.  If the Division determines that the value of its spare conduit or related facilities has changed, the Division must apply the new values to each agreement executed thereafter.

(3). The Division may accept in-kind compensation for the use of and access to its spare conduit and related facilities in accordance with the valuation procedures as set forth in §31G-5-3 of this Code.

§31G-5-8. Relocation

(a) Relocation and upgrade of telecommunications facilities within rights-of-way for state highways shall be conducted as follows:

(1) For rights-of-way not on an interstate, the Division may place additional conduit and related facilities within such rights-of-way for use by telecommunications providers based on the potential use by such providers, as determined by the Division.  The Division may grant use of such conduit and related facilities by telecommunications providers in exchange for a trade value, as determined by the Division, for such use from such providers. A telecommunications provider is not entitled to compensation for its expenses to relocate from the conduit infrastructure of the Division unless such provider has a right of occupancy in its current location because it holds a compensable real property interest.

(2) For rights-of-way on an interstate, the Division may grant longitudinal access to such rights-of-way in accordance with the provisions of this article, and in accordance with Federal law.

(b) The Commissioner of the Division of Highways may construct, reconstruct, operate and maintain materials testing and research laboratory facilities as may be necessary to establish and maintain such standards and specifications.

(c) The Commissioner of the Division of Highways may be consulted by county officials, including members of regional transportation commissions, having authority over streets and highways within their respective counties relative to any question involving such streets and highways; and the Commissioner, in like manner, obtain from such county officials all such information or assistance as they may render in the performance of the Commissioner’s duties with their county, and such county officials shall supply such information when requested by the Commissioner.

§31G-5-9. Broadband conduit installation in covered highway construction projects.

(a) (1) Notwithstanding any other provision of this section, the Division shall inform the Council 90 days prior to issuing a request for proposal or a request for qualifications for a covered highway construction project, and provide to the Council a description of the project adequate to make a determination by the Council of the necessity to include broadband conduit in the project and to determine the specifications of the broadband conduit to be included in the project.  Upon review of the proposed project, the Council shall issue a determination as to whether or not the covered highway construction project represents an effective and efficient opportunity for the expansion of broadband service. The recommendation may include installation of the broadband conduit throughout the entire project, or, only in portions of the project.  

(2) (A) If the Council determines the covered highway construction project represents an effective and efficient opportunity for the expansion of broadband service; and

(B) If no provider has applied under the provisions of this article to install conduit in the right of way of that covered highway construction project; then

(C) The Division shall install vacant broadband conduit in accordance with this article as part of that covered highway construction project. All work performed must be in accordance with the National Electrical Safety Code and other generally accepted safety codes.  All details of such installation, including the depth of installation of conduit, the size of said conduit, the placement of hand holes and manholes for fiber access, the location and access to pull tape, the interval between access points, and other such considerations are to be in accordance with industry best practices, and as determined by applicable rules jointly promulgated by the Council and the Commissioner of the Division of Highways.

(b) Providers desiring use of this conduit may make use of this vacant conduit upon application to the Division. If the Division approves, it shall then lease the broadband conduit to providers at a cost-based rate and coordinate with providers regarding planning and relocating of broadband conduit and any related provider facilities within the right-of-way at the provider's expense if future highway improvements make the relocations necessary. The Division shall take reasonable steps to ensure market-based, nondiscriminatory pricing, and, may limit provider access to any broadband facilities within the right-of-way for initial installation and infrequent access for maintenance purposes and may take other actions necessary to maintain highway safety

(c) The Division may install broadband conduit without regard to the timing of a related existing construction project, based on a request for and receipt of funding from the Council.

(d) The Division shall not be required to comply with the provisions of this section if a provider has already installed conduit:

(1) as part of the same covered highway construction project; or

(2) on the same right of way prior to the commencement of the covered highway construction project.

§31G-5-10.  Infrastructure development.

(a) The Council shall, in collaboration with the Department of Transportation, Division of Highways, and private entities, encourage and coordinate “dig once” efforts for the planning, relocation, installation, or improvement of broadband conduit within a right-of-way in conjunction with any current or planned construction, including, but not limited to, highways and bridges. To the extent necessary, the Council shall, in collaboration with the Department of Transportation and Division of Highways, evaluate engineering and design standards, procedures and criteria for contracts or lease agreements with private entities, and pricing requirements, and provide for allocation of risk, costs, and any revenue generated.

(b) The Council shall, in collaboration with other state departments and agencies the Council considers necessary, develop a strategy to facilitate the timely and efficient deployment of broadband conduit or other broadband facilities on state-owned lands and buildings.

(c) To the extent practicable, the Council shall encourage and assist local units of government to adopt and implement policies similar to those under subsections (a) and (b) of this section for construction or other improvements to county and municipal building projects, and any other right-of-way under the local unit of government's jurisdiction, and to other lands or buildings owned by the local unit of government.

§31G-5-11. Rulemaking authority. 

The Broadband Enhancement Council and the Commissioner of the Division of Highways shall jointly promulgate rules pursuant to the provisions of §29A-3-15 of this code and shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code as may be necessary to carry out the purposes of this article, and as may have been specifically delineated within this article.

NOTE: The purpose of this bill is to provide for a uniform and efficient system of broadband conduit installation coinciding with the construction, maintenance or improvement of highways and right-of-way under the oversight of the Division of Highways.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.