WEST virginia legislature
2019 regular session
Senate Bill 270
By Senators Carmichael (Mr. President) and Prezioso (By Request of the Executive)
January 11, 2019; Referred
to the Committee on Government Organization]
A BILL to amend and reenact §17-2A-17a of the Code of West Virginia, 1931, as amended; and to amend and reenact §17-2E-2, §17-2E-3, §17-2E-5, and §17-2E-6 of said code, all relating to the use of state-owned rights-of-way; modifying requirements related to accommodation leases; amending procedures and requirements of the state’s dig once policy; modifying definitions; providing for the determination of fair market value; modifying notice requirements for permit applicants; amending procedures for the adjudication of disputes between telecommunications carriers; providing exemptions to certain dig once requirements; and authorizing the Division of Highways to, upon approval of the Governor, transfer or assign the ownership, control, or any rights related to any in-kind compensation received by the division to any other state agency.
Be it enacted by the Legislature of West Virginia:
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-17a. Acquisition of property for utility accommodation purposes; utility defined.
(a) The Legislature finds that it is in the public
interest for utility facilities to be accommodated on the right-of-way of state
highways when such use and occupancy of the highway right-of-way
not adversely affect highway or traffic safety or otherwise impair the highway
or its aesthetic quality, and do does not conflict with the
provisions of federal, state, or local laws, legislative rules, or agency
policies. Utilities provide an essential service services to
the general public and, as a matter of sound economic public policy and law,
utilities have used state road rights-of-way for transmitting and distributing
their services. Such The accommodation of utility facilities on
the right-of-way rights-of way of state highways serves an
important public purpose by increasing public access to utility services.
(b) “Utility” means, for purposes of this chapter, any privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, data, information, video services, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, stormwater not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public. The term “utility” also includes those similar facilities which are owned or leased by a government agency for its own use, or otherwise dedicated solely to governmental use.
(c) In addition to all other powers given and assigned to
the commissioner in this chapter, the commissioner may acquire, either
temporarily or permanently, in the name of the division
of Highways, and
adjacent to public roadways or highways, all real or personal property, public
or private, or any interests or rights therein, including any easement,
riparian right, or right of access, determined by the commissioner to be
necessary for present or presently foreseeable future utility accommodation purposes.
(d) Notwithstanding any provision of this article to
the contrary, the commissioner may lease real property held by the division
of Highways or any interest or right in the property, including airspace
rights, if any, for the purpose of accommodating any utility that has requested
a lease if the commissioner finds, in his or her sole discretion, that entering
into the lease agreement with the utility is in the public interest. The
term of any accommodation lease authorized by this section shall not exceed 30
years. Neither competitive bids nor public solicitations are required prior to
entering into a utility accommodation lease. Any utility accommodation lease
shall require the utility to pay fair market value for the real property
interest as determined by the commissioner using common valuation methods,
which shall include consideration of the use of the property for utility
accommodation purposes: Provided, That amounts paid for property damage by the
division in a condemnation case shall not be considered in the commissioner’s
determination of fair market value. The commissioner shall have the option to
charge and collect a one-time lease payment or fixed installment lease payments
from a utility in connection with an accommodation lease. All moneys received
from utility accommodation leases shall be paid into the state Treasury and
credited to the State Road Fund. The provisions of this subsection are
completely voluntary and shall not be interpreted to require any utility to
lease any real property, or any interest or right in the property, from the
commissioner: Provided, however, That for any utility which is not subject to
the jurisdiction of the Public Service Commission, the lease shall not contain
any exclusivity provisions The execution and governance of such
accommodation leases are subject to the following:
(1) The term of any accommodation lease authorized by this section may not exceed 30 years;
(2) Neither competitive bids nor public solicitations are required prior to entering into a utility accommodation lease;
(3) Any utility accommodation lease shall require the utility to pay fair market value for the real property interest as determined by the commissioner: Provided, That fair market value, for the purposes of this article, shall be established at $0 in monetary compensation; such valuation shall be made due to the fundamental value that the maintenance and expansion of utility services provides to the citizens of this state: Provided, however, That a utility accommodation lease may include provisions that convey the state in-kind compensation;
(4) For any utility which is not subject to the jurisdiction of the Public Service Commission, an accommodation lease may not contain any exclusivity provisions;
(5) The provisions of this subsection do not require any utility to lease any real property, or any interest or right in the property, from the commissioner; and
(6) The ownership, control, or any rights related to any in-kind compensation received by the division may, upon written approval of the Governor, be transferred or assigned to any other state agency.
ARTICLE 2E. DIG ONCE POLICY.
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) “Council” means the Broadband Enhancement Council.
(4) “Direct bury” means the burying of telecommunications wire or cable directly into the ground by means of plowing or direct insertion without the opening of a trench and without the installation of conduit or innerduct.
(4) (5) “Division” means the Division of
Highways. (5) (6) “Longitudinal access” means access
to or the use of any part of a right-of-way that extends generally parallel to
the traveled right-of-way. (6) (7) “Permit” means an encroachment
permit issued by the Commissioner of the division of Highways under the
authority 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 equivalent policy, as may be currently
enforced by the division, of Highways that specifies the requirements
and conditions for performing work in a right-of-way and where such work
involves the creation or opening of a trench for the installation of
telecommunications facilities in a right-of-way. (7) (8) “Right-of-way” means land, property,
or any interest therein acquired or controlled by the West Virginia division
of Highways for transportation facilities or other transportation
purposes or specifically acquired for utility accommodation. (8) (9) “Telecommunications carrier” means a
(A) As determined by the Public Service Commission of West Virginia; or
(B) That meets the definition of telecommunications carrier with respect to the Federal Communications Commission, as contained in 47 U.S.C. §153.
(9) (10) “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. (10) (11) “Utility facility” has the meaning
ascribed to it in §17-2A-17a of this code. (11) (12) “Wireless access” means access to
and use of a right-of-way for the purpose of constructing, installing, maintaining,
using, or operating telecommunications facilities for wireless
§17-2E-3. Use of rights-of-way. Broadband conduit installation in rights-of-way; permits; agreements; compensation; valuation of compensation.
(a) Before obtaining a permit for the construction or installation of a telecommunications facility in a right-of-way, a telecommunications carrier must enter into an agreement with the division consistent with the requirements of this article.
(b) Before granting
permitted a permit for
longitudinal access or wireless access to a right-of-way, the division of
(1) First enter into an agreement with a telecommunications carrier that is competitively neutral and nondiscriminatory as to other telecommunications carriers; and
(2) Upon receipt of any required approval or concurrence
by the Federal Highway Administration the division may issue a permit granting
access under this section: Provided, That the division
shall comply with all applicable federal regulations with respect to approval
of an agreement, including, but not limited to, 23 C.F.R. §710.403 and 23
C.F.R. §710.405. The agreement shall be approved by the Commissioner of
Highways in order to be effective 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.
(b) (c) Unless specifically provided for in
an agreement entered into pursuant to subsection (a) of this section, the division
of Highways may not grant a property interest in a right-of-way pursuant
to this article. (c) (d) A telecommunications carrier shall
compensate the division of Highways for access to a right-of-way for the
construction, installation, and maintenance of telecommunication facilities, and
for the use of spare conduit or related facilities of owned or
controlled by the division of Highways as part of any longitudinal
access or wireless access granted to a right-of-way pursuant to this section.
The compensation must be, without limitation:
(1) At fair market value: Provided, That the fair market value for access to a right-of-way shall be established at $0; such valuation shall be made due to the fundamental value that the maintenance and expansion of utility services provides to the citizens of this state;
(2) Competitively neutral;
(4) Open to public inspection;
(5) Calculated 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 once calculated, set at an amount that encourages the deployment of digital infrastructure within this state:
(6) Paid in monetary compensation or with in-kind compensation, or a combination of monetary compensation and in-kind compensation; and
(7) Paid in a lump-sum payment or in annual installments,
as agreed to by the telecommunications carrier and the division.
of Highways (d) (e) The division may consider
adjustments for areas, the division in conjunction with the council, determines
are underserved or unserved areas of the state and may consider the value to
such areas for economic development, enhancing the transportation system,
expanding opportunities for digital learning, and telemedicine. (e) (f) For the purpose of determining the
amount of compensation a telecommunications carrier must pay the division of
Highways for the use of spare conduit or excess conduit or related
facilities of the division of Highways as part of any longitudinal
access or wireless access granted to a right-of-way pursuant to this section,
the division may:
(1) Conduct an analysis once every five years, in
accordance with the rules, policies, or guidelines of the division,
Highways to determine the fair market value of a right-of-way to which
access has been granted pursuant to this section; and
(2) If compensation is paid in-kind, determine the fair market value of the in-kind compensation based on the incremental costs for the installation of conduit and related facilities.
(f) (g) The value of in-kind compensation,
or a combination of money and in-kind compensation, must be equal to or greater
than the amount of monetary compensation that the division of Highways
would charge if the compensation were paid solely with money. (g) (h) The provisions of this article shall
not apply to the relocation or modification of existing telecommunication
facilities in a right-of-way, nor shall these provisions apply to aerial
telecommunications facilities or associated apparatus or equipment in a
right-of-way. Relocation of telecommunications facilities within rights-of-way
for state highways shall be in accordance with the provisions of §17-4-17b of
§17-2E-5. Telecommunications carrier initiated construction and joint use.
(a) The division of Highways shall provide for the
proportionate sharing of costs between telecommunications carriers for joint
trenching or trench sharing based on the amount of conduit innerduct space or
excess conduit that is authorized in the agreements entered into pursuant to
this article. If the division plans to use the trench, it shall pay its
proportional share unless it is utilizing the trench as in-kind payment for use
of the right-of-way (b) (a)
Upon application for a permit, the applying telecommunications carrier will
shall notify, by email, the West Virginia Broadband Enhancement council
and all other telecommunications carriers on record with the West
Virginia Broadband Enhancement council of the application. Other telecommunications
carriers have 30 15 calendar days to notify the applicant if
they wish of their interest to share the applicant’s trench. This
requirement extends to all underground construction technologies. (c) The
carrier shall also meet the following conditions for a permit: (1) The telecommunications carrier will be required to
place, at its sole expense, a Class II legal advertisement, in accordance with
§59-3-2(a) of this code, and of a form and content approved by the division of
Highways, in the local project area newspaper, in the Charleston newspaper, on
industry and the division of Highways’ websites, and within other pertinent
media, announcing the general scope of the proposed installation within the
right-of-way and providing competing telecommunications carriers the
opportunity to timely express an interest in installing additional
telecommunication facilities during the initial installation. The legal
advertisement is to run at least two consecutive weeks, and the
telecommunications carrier is to notify the division of any interest of other
(b) If no competing telecommunications carrier provides notice of interest to share the applicant’s trench within 15 calendar days of notice of the project, the carrier applying for the permit shall affirm that fact to the division prior to being issued a permit.
If a competing telecommunications carrier expresses provides notice
of interest in participating in the project to share the
applicant’s trench, an agreement between the two (or more) telecommunications
carriers will shall be executed by those entities within 30
days of the notice of interest, outlining the responsibilities and
financial obligations of each, with respect to the installation within the
right-of-way. The financial obligations of each carrier shall be based on
the proportionate sharing of costs between each carrier for joint trenching or
trench sharing based on the amount of conduit innerduct space or excess conduit
that is authorized in the agreements entered into pursuant to this article. If
the division uses a trench, it shall also pay its proportional share unless it
is utilizing the trench as in-kind payment for use of the right-of-way. A
copy of the executed agreement shall be provided to the division. of
Highways (3) The
telecommunications carrier that placed the legal advertisement is responsible
for resolving in good faith all disputes between any competing
telecommunications carriers that timely responded to the advertisement and that
wishes to install facilities within the same portion of the rights-of-way to be
a dispute arise between the initial applying telecommunications carrier
and a competing telecommunications carrier, including a failure to execute
an agreement required by subsection (c) of this section, the
telecommunications carrier will attempt to mediate the dispute. Any dispute
that is not resolved by the telecommunications carriers dispute shall
be adjudicated by the Public Service Commission. All disputes brought to the
Public Service Commission under this article shall be adjudicated within 45
days. (d) (e)
If two or more telecommunications carriers are required or authorized to share
a single trench, each carrier 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. (e) (f)
The Commissioner of the division of Highways shall promulgate rules
governing the relationship between the telecommunications carriers, as
hereinafter provided in this article.
(g) The provisions of this section do not apply to the following projects:
(1) Projects where the trench is less than 1,000 feet in length;
(2) Projects that use the direct bury of cable or wire facilities;
(3) Projects that are solely for the service of entities involved in national security matters or where the disclosure or sharing of a trench location would be against federal policy; or
(4) Projects where the telecommunications carrier installs an amount of spare conduct or innerduct equal to what is being installed for their own use and which is made available for lease to competing telecommunications carriers on a nondiscriminatory basis at rates established by the rules of the Federal Communications Commission. All carriers installing spare conduit or innerduct shall notify the council of the location and capacity of such spare conduit and innerduct upon completion of the project, and the council shall make such information publicly available for competing telecommunications carriers.
§17-2E-6. Monetary and in-kind compensation.
(a) All monetary compensation collected by the division
Highways pursuant to this article shall be deposited in the State Road
(b) In-kind compensation paid to the division
Highways under an agreement entered into pursuant to this article may
include, without limitation:
(1) Conduit or excess conduit;
(3) Dark fiber;
(4) Access points;
(5) Telecommunications equipment or services;
(6) Bandwidth; and
(7) Other telecommunications facilities as a component of the present value of the trenching.
(c) The division
of Highways shall value any
in-kind compensation based on fair market value at the time of installation or
review, and may also consider any valuation or cost information provided by the
(d) In-kind compensation paid to the division
Highways may be disposed of if both of the following conditions are met:
(1) The telecommunications facility received as in-kind payment has not been used within 10 years of it installation; and
(2) The Commissioner of the division
determines that the division does not have an immediately foreseeable need for
the telecommunications facility.
(e) Upon determining that it is appropriate to dispose of the telecommunications facility, the division shall determine its current fair market value. The division shall offer the provider or providers who made the in-kind payment the option to purchase any telecommunications facility obtained from such provider. If the provider or providers do not purchase the telecommunications facility, it shall be offered for public auction in the same manner as the division auctions excess rights-of-way.
(f) Notwithstanding the provisions of subsections (d) and (e) of this section, the division may, upon written approval of the Governor, transfer or assign the ownership, control, or any rights related to any in-kind compensation received by the division or any other state agency.
NOTE: The purpose of this bill is to make the process for utilities to gain access to DOH rights-of-way more efficient.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.