ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2453
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Passed March 13, 1999; in effect ninety days from passage.]
An ACT to repeal articles eighteen and eighteen-a, chapter five
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section three,
article one, chapter twenty-four of said code; and to amend
said code by adding thereto a new chapter, designated
chapter twenty-four-d, all relating to the public service
commission; continuing the public service commission;
delegating to the public service commission the
responsibilities formerly held by the West Virginia cable
television advisory board and the regulation of cable
television thereby; repealing and substantially enacting the
provisions of the cable television systems act and tenant's
right to cable service act; requiring cable franchises;
establishing duties of the public service commission;
describing the application process; establishing standards
for cable service; establishing penalties; restricting franchise transfer; requiring rate filings; establishing
certain requirements for operation; establishing a complaint
process; giving the public service commission the authority
to establish rules and regulations; preserving the current
method of taxation; establishing tenants rights to cable
service; establishing a right of entry by a cable operator;
requiring a notice of installation of cable service by a
cable operator; and establishing procedures for determining
just compensation for a landlord.
Be it enacted by the Legislature of West Virginia:
That articles eighteen and eighteen-a, chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, are hereby repealed; that section three, article one,
chapter twenty-four of said code be amended and reenacted; and
that said code is amended by adding thereto a new chapter,
designated chapter twenty-four-d, all to read as follows:
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 1. GENERAL PROVISIONS.
§24-1-3. Commission continued; membership; chairman;
compensation.
(a) The public service commission of West Virginia,
heretofore established, is continued and directed as provided by
this chapter, chapter twenty-four-a, chapter twenty-four-b and
chapter twenty-four-d of this code. After having conducted a
performance audit through its joint committee on government operations, pursuant to section nine, article ten, chapter four
of this code, the Legislature hereby finds and declares that the
public service commission should be continued and reestablished.
Accordingly, notwithstanding the provisions of section five,
article ten, chapter four of this code, the public service
commission shall continue to exist until the first day of July,
two thousand one. The public service commission may sue and be
sued by that name. The public service commission shall consist
of three members who shall be appointed by the governor with the
advice and consent of the Senate. The commissioners shall be
citizens and residents of this state and at least one of them
shall be duly licensed to practice law in West Virginia, with not
less than ten years' actual work experience in the legal
profession as a member of a state bar. No more than two of the
commissioners shall be members of the same political party. Each
commissioner shall, before entering upon the duties of his or her
office, take and subscribe to the oath provided by section five,
article IV of the constitution of this state. The oath shall be
filed in the office of the secretary of state. The governor
shall designate one of the commissioners to serve as chairman at
the governor's will and pleasure. The chairman shall be the
chief administrative officer of the commission. The governor may
remove any commissioner only for incompetency, neglect of duty,
gross immorality, malfeasance in office or violation of
subsection (c) of this section.
(b) The unexpired terms of members of the public service
commission at the time this subsection becomes effective are
continued. Upon expiration of the terms, appointments are for
terms of six years, except that an appointment to fill a vacancy
is for the unexpired term only. The commissioners whose terms
are terminated by the provisions of this subsection are eligible
for reappointment.
(c) No person while in the employ of, or holding any
official relation to, any public utility subject to the
provisions of this chapter, or holding any stocks or bonds of a
public utility subject to the provisions of this chapter, or who
is pecuniarily interested in a public utility subject to the
provisions of this chapter, may serve as a member of the
commission or as an employee of the commission. Nor may any
commissioner be a candidate for or hold public office, or be a
member of any political committee, while acting as a
commissioner; nor may any commissioner or employee of the
commission receive any pass, free transportation or other thing
of value, either directly or indirectly, from any public utility
or motor carrier subject to the provisions of this chapter. In
case any of the commissioners becomes a candidate for any public
office or a member of any political committee, the governor shall
remove him or her from office and shall appoint a new
commissioner to fill the vacancy created.
(d) The salaries of members of the public service commission and the manner in which they are paid established by the prior
enactment of this section are continued. Effective the first day
of July, one thousand nine hundred ninety-six, and in light of
the assignment of new, substantial additional duties embracing
new areas and fields of activity under certain legislative
enactments, each commissioner shall receive an annual salary of
sixty-five thousand dollars to be paid in monthly installments
from the special funds in the amounts that follow:
(1) From the public service commission fund collected under
the provisions of section six, article three of this chapter,
fifty-two thousand dollars;
(2) From the public service commission motor carrier fund
collected under the provisions of section six, article six,
chapter twenty-four-a of this code, ten thousand eight hundred
fifty dollars; and
(3) From the public service commission gas pipeline safety
fund collected under the provisions of section three, article
five, chapter twenty-four-b of this code, two thousand one
hundred fifty dollars.
In addition to this salary provided for all commissioners,
the chairman of the commission shall receive five thousand
dollars per annum to be paid in monthly installments from the
public service commission fund collected under the provisions of
section six, article three of this chapter on and after the first
day of July, one thousand nine hundred ninety-six.
CHAPTER 24D. CABLE TELEVISION.
ARTICLE 1. CABLE TELEVISION SYSTEMS ACT.
§24D-1-1. Legislative findings.
The Legislature finds that television is an important source
of information and entertainment affecting the welfare and
economy of the state, and that cable television services have
become widespread, often providing the only access to quality
television signals in many areas of the state. The Legislature
finds that it is in the public interest to establish uniform
standards within the state of West Virginia for the issuance,
renewal and transfer of cable television franchises; to establish
uniform standards for the provision of cable service; to
establish uniform procedures for the investigation and resolution
of complaints concerning cable service; and to establish just,
reasonable and nondiscriminatory rates and charges for the
provision of cable service to the extent that the service is not
subject to effective competition. The purpose of the article is
to promote such goals by all available means not in conflict with
federal law, rules or regulations.
§24D-1-2. Definitions.
As used in this chapter:
(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) "Cable franchise" or "franchise" means a nonexclusive
initial authorization or renewal thereof issued pursuant to this
chapter, whether the authorization is designated as a franchise,
permit, order, contract, agreement or otherwise, which authorizes
the construction or operation of a cable system.
(5) "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.
(6) "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.
(7) "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.
(8) "Commission" or "public service commission" means the
public service commission of West Virginia.
(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 public service commission empowered by federal,
state or local law to grant a cable franchise.
(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 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 that 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.
§24D-1-3. 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 chapter.
(b) Any person operating a cable system on the effective
date of this chapter without a franchise shall, within sixty days
of the effective date of this chapter, notify the commission 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; (4) the number of subscribers within the
cable system or systems; and (5) if applicable, the date on which
and the franchising authority with which, a formal application
for a franchise was filed.
(c) The commission 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,
that has not previously applied for a franchise with the
appropriate franchising authority, shall, within sixty days of receipt of such notice from the commission, 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
commission.
(e) If a county commission elects not to act as the
franchise authority, the commission shall become the franchising
authority. A county commission acting as a franchising authority
for unincorporated areas of the county may elect separately to
transfer to the commission any franchise authority acquired from
a municipality. If any municipality or county commission so elects not to be the franchising authority, the mayor or
president of the county commission shall certify such delegation
in writing to the commission. Such election shall be promptly
made upon written request of the commission or the cable
operator.
§24D-1-4. Existing cable franchises.
(a) The provisions of any cable franchise in effect on the
effective date of this chapter shall remain in effect, subject to
the express provisions of this article, and for no longer than
the then current remaining term of the franchise as such
franchise existed on the effective date.
(b) For purposes of subsection (a) of this section and other
provisions of this article, a cable franchise shall be considered
in effect on the effective date of this article if such franchise
was granted on or before such effective date.
§24D-1-5. Duties of the public service commission.
In addition to its other duties, the public service
commission shall:
(a) To the extent permitted by, and not contrary to
applicable federal law, rules and regulations:
(1) 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 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 other procedural
standards governing the issuance of cable franchises mandated by
the provisions of this article or as the commission may otherwise
deem necessary or appropriate to assure maximum public
participation and competition and to protect the public interest;
(2) 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 other
standards for inclusion in franchises as the commission shall
deem 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;
(3) 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;
(4) 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 commission'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;
(5) 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 standards, as the commission 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;
(b) Provide advice and technical assistance to other
franchising authorities and community organizations in matters
relating to cable franchises and services;
(c) Establish minimum specifications for equipment, service
and safety of cable;
(d) Represent the interests of citizens of this state before
the federal communications commission and make available
information to the public on communications developments at the
federal level;
(e) Stimulate and encourage cooperative arrangements among
organizations, institutions, counties and municipalities in the
development of public, educational or governmental access
facilities;
(f) 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;
(g) Undertake such studies as may be necessary to meet the responsibilities and objectives of this article; and
(h) 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.
§24D-1-6. Application or proposal for cable franchise; fee;
certain requirements.
(a) No cable franchise shall be issued except upon written
application or proposal therefor to the franchising authority,
accompanied by a fee of two hundred fifty dollars.
(b) An application for issuance of a cable franchise shall
be made on a form prescribed by the commission. The application
shall set forth the facts as required by the commission to
determine whether a cable franchise should be issued, including
facts as to:
(1) The citizenship and character of the applicant;
(2) The financial, technical and other qualifications of the
applicant;
(3) The principals and ultimate beneficial owners of the
applicant;
(4) The public interest to be served by the requested
issuance of a cable franchise; and
(5) Any other matters deemed appropriate and necessary by
the commission including the proposed plans and schedule of
expenditures for or in support of the use of public, educational
and governmental access facilities.
(c) A proposal for issuance of a cable franchise shall be
accepted for filing only when made in response to the written
request of the franchising authority for the submission of
proposals.
§24D-1-7. Cable franchise application or proposal procedure;
public hearing; notice.
An application or proposal for a cable franchise shall be
processed as follows:
(1) After the application or proposal and required fee are
received by the franchising authority within a time frame
established by rule promulgated by the commission, the
franchising authority shall notify an applicant in writing of the
acceptance or nonacceptance for filing of an application or
proposal for issuance of a cable franchise required by this
chapter.
(2) After the issuance of a notice of acceptance for filing
and within a time frame established by rule promulgated by the
commission, the franchising authority shall hold a public hearing
on the application or proposal to afford interested persons the
opportunity to submit data, views or arguments, orally or in
writing. If the franchising authority is the commission, notice
thereof shall be given to the city council and mayor of any
municipalities affected, the county commission of any counties
affected and to any telephone or other utility and cable company
in the county or counties in which the proposed service area is located, and a representative of the governing body of a
municipality or county commission may appear at the public
hearing to represent the interests of the public which will be
served by the issuance of a cable franchise. The franchising
authority shall also cause notice of the application and hearing
to be published at least once in each of two successive weeks in
a newspaper of general circulation in the county or counties in
which the proposed service area is located. The last published
notice shall appear at least fifteen days prior to the date of
the hearing.
(3) After holding a public hearing, the franchising
authority shall approve the application or proposal, in whole or
in part, with or without conditions or modifications, or shall
deny the application or proposal, with reasons for denial sent in
writing to the applicant. Upon denial of the application or
proposal, the applicant may appeal such denial to the circuit
court of the county in which the franchise is to be located,
which appeal shall be filed and considered in accordance with the
provisions of section four, article five, chapter twenty-nine-a
of this code.
(4) The provisions of this article supersede and replace all
other state requirements regarding the issuance, notification and
terms and conditions of a cable franchise.
§24D-1-8. Issuance of cable franchise authority; criteria;
content.
(a) A franchising authority is exclusively empowered to
issue a cable franchise to construct or operate facilities for a
cable system upon the terms and conditions provided in this
article.
(b) The franchising authority, after a public hearing as
provided in this article, shall issue a cable franchise to the
applicant when the franchising authority is convinced that it is
in the public interest to do so. In determining whether a cable
franchise shall be issued, the franchising authority shall take
into consideration, among other things, any objections arising
from the public hearing, the content of the application or
proposal, the public need for the proposed service, the ability
of the applicant to offer safe, adequate and reliable service at
a reasonable cost to the subscribers, the suitability of the
applicant, the financial responsibility of the applicant, the
technical and operational ability of the applicant to perform
efficiently the service for which authority is requested, and any
other matters as the franchising authority considers appropriate
in the circumstances.
(c) In determining the area which is to be serviced by the
applicant, the franchising authority shall take into account the
geography and topography of the proposed service area, and the
present, planned and potential expansion in facilities or cable
services of the applicant's proposed cable system and any of the
applicant's existing cable systems.
(d) In issuing a cable franchise under this article, the
franchising authority is not restricted to approving or
disapproving the application or proposal, but may issue it for
only partial exercise of the privilege sought or may attach to
the exercise of the right granted by the cable franchise terms,
limitations which the franchising authority considers the public
interest may require. The cable franchise shall be nonexclusive,
shall include a description of the service area in which the
cable system is to be constructed, extended or operated and the
approximate date on which the service is to commence and shall
authorize the cable operator to provide service for a term of
fifteen years.
§24D-1-9. Cable system installation, construction, operation,
removal, general provisions.
(a) A cable franchise shall be construed to authorize the
construction or operation of a cable system: (i) Over public
rights-of-way; and (ii) through easements, which are within the
area to be served by the cable system and which have been
dedicated for compatible uses.
(b) The technical specifications, general routes of the
distribution system and the schedule for construction of the
cable system are subject to the approval of the franchising
authority.
(c) In installing, operating and maintaining facilities, the
cable operator shall avoid all unnecessary damage and injury to any trees, structures and improvements in and along the routes
authorized by the franchising authority.
(d) The cable operator shall indemnify and hold the state,
county and municipality harmless at all times from any and all
claims for injury and damage to persons or property, both real
and personal, caused by the installation, operation or
maintenance of its cable system, notwithstanding any negligence
on the part of the state, county and/or municipality, their employees or agents. Upon receipt of notice in writing from the
state, county and/or municipality, the cable operator shall, at
its own expense, defend any action or proceeding against the
state, county and/or municipality in which it is claimed that
personal injury or property damage was caused by activities of
the cable operator in the installation, operation or maintenance
of its cable system.
(e) The cable operator shall provide a cable drop and basic
cable service at no cost to any school or institution of higher
education within its service area if service is actually being
delivered within a reasonable distance from the school or
institution of higher education which may request service.
(f) The cable operator shall be required to designate at
least ten percent but not more than three of all of its channels
for public, educational or governmental use.
(g) Upon termination of the period of the cable permit or of
any renewal thereof, by passage of time or otherwise, the cable
operator shall remove its facilities from the highways and other
public places in, on, over, under or along which they are
installed if so ordered by the franchising authority and shall
restore the areas to their original or other acceptable condition
or otherwise dispose of its facilities. If removal is not completed within six months of the termination, any property not
removed shall be deemed to have been abandoned and the cable
operator shall be liable for the cost of its removal.
(h) The use of public highways and other public places shall
be subject to:
(l) All applicable state statutes, municipal ordinances and
all applicable rules and orders of the commission governing the
construction, maintenance and removal of overhead and underground
facilities of public utilities;
(2) For county highways, all applicable rules adopted by the
governing body of the county in which the county highways are
situated; and
(3) For state or federal-aid highways, all public welfare
rules adopted by the secretary of the department of
transportation.
(i) In the use of easements dedicated for compatible uses,
the cable operator shall ensure:
(1) That the safety, functioning and appearance of the
property and the convenience and safety of other persons is not
adversely affected by the installation or construction of
facilities necessary for a cable system;
(2) That the cost of the installation, construction, operation or removal of facilities is borne by the cable operator
or subscribers, or a combination of both; and
(3) That the owner of the property is justly compensated by
the cable operator for any damages caused by the installation,
construction, operation or removal of facilities by the cable
operator.
(4) An "easement dedicated for compatible uses" is a public
or private easement for electric, gas, telephone or other utility
transmission.
§24D-1-10. Revocation, alteration, or suspension of cable
franchise; penalties.
(a) Any cable franchise issued in accordance with the
provisions of this chapter may be revoked, altered or suspended
by the franchising authority upon the recommendation of the
commission to a municipality or county acting as a franchising
authority or after a hearing before the franchising authority,
for the following reasons:
(1) For making material false or misleading statements in,
or for material omissions from, any application or proposal or
other filing made with the franchising authority;
(2) For repeated failure to maintain signal quality under
the standards prescribed by the commission;
(3) For any sale, lease, assignment or other transfer of its
cable franchise without consent of the franchising authority;
(4) Except when commercially impracticable, for unreasonable
delay in construction or operation or for unreasonable
withholding of the extension of cable service to any person in a
service area;
(5) For material violation of the terms of its cable
franchise;
(6) For failure to substantially comply with this chapter or
any rules, regulations or orders prescribed by the commission;
(7) For substantial violation of its filed schedule of terms
and conditions of service; and
(8) For engaging in any unfair or deceptive act or practice.
(b) In lieu of, or in addition to, the relief provided by
subsection (a) hereof, the franchising authority may fine a cable
operator, for each violation under the provisions of this
section, in an amount not less than fifty dollars nor more than
five thousand dollars for each violation. Each day's continuance
of a violation may be treated as a separate violation pursuant to
rules and regulations adopted by the commission. Any penalty
assessed under this section shall be in addition to any other
costs, expenses or payments for which the cable operator is responsible under other provisions of this chapter.
§24D-1-11. Renewal of cable franchise.
(a) Any cable franchise issued pursuant to this chapter may
be renewed by the franchising authority upon approval of a cable
operator's application or proposal therefor and in accordance
with the provisions of 47 U.S.C. §546 as the same is in effect on
the effective date of this chapter. The form of the application
or proposal shall be prescribed by the commission. The
application or proposal fee shall be the same fee prescribed for
franchise applications. The periods of renewal shall be not less
than five nor more than twenty years each. The commission shall
require of the applicant full disclosure, including the proposed
plans and schedule of expenditures for or in support of the use
of public, educational or governmental access facilities. Except
as otherwise provided in this section, the franchising authority
shall have exclusive authority regarding the renewal of a cable
franchise.
(b) For cable franchises for which a proposal or application
for renewal has been submitted by the cable operator to the
franchising authority prior to expiration of the cable franchise
and which application or proposal the franchising authority has
neither approved nor denied, the cable franchise, at the cable operator's election, shall continue upon the same terms and
conditions until such time as the franchising authority either
approves or denies the application or proposal for renewal.
§24D-1-12. Transfer of cable franchise.
(a) No cable system and no cable franchise, including any
system without a franchise and any franchise in existence on the
effective date of this chapter, may be assigned, sold, or
transferred, including a transfer of control of any cable system,
whether by change in ownership or otherwise, except upon written
application to and approval of the appropriate franchising
authority or authorities. For purposes of this section "transfer
of control" means a transfer of the majority interest, either
directly or indirectly, in the entity holding the cable
franchise. The form of the application for transfer shall be
prescribed by the commission.
(b) Notice provisions may be prescribed by the commission
for encumbrances creating potential transfers.
(c) The procedure for consideration of any transfer under
the provisions of this section shall conform, as nearly as
possible, to the procedures prescribed in sections six and seven
of this article for the consideration of issuing cable
franchises, including the application fee therefor.
(d) Except as otherwise provided in this section, the
franchising authority shall have exclusive authority regarding
the approval of transfers of cable franchises.
§24D-1-13. Rates; filing with public service commission;
approval.
(a) The commission shall require each cable operator to file
a schedule of its rates of service on a form and with the notice
that the commission may prescribe. The schedule shall be filed
with the annual report referenced in section twenty-four of this
article.
(b) To the extent permitted by federal law, the commission
shall regulate rates to ensure that they are just and reasonable
both to the public and to the cable operator and are not unduly
discriminatory.
(c) To the extent permitted by federal law, the commission
shall regulate charges other than those related to rates for the
provision of basic cable service to ensure that they are just and
reasonable and not unduly discriminatory.
§24D-1-14. Requirement for adequate service; terms and
conditions of service.
(a) Every cable operator shall provide safe, adequate and
reliable service in accordance with applicable laws, rules,
franchise requirements and its filed schedule of terms and conditions of service.
(b) The commission shall require each cable operator to
submit a schedule of all terms and conditions of service in the
form and with the notice that the commission may prescribe. The
schedule shall be submitted with the annual report referenced in
section twenty-four of this article.
(c) The commission shall ensure that the terms and
conditions upon which cable service is provided are fair both to
the public and to the cable operator, taking into account the
geographic, topographic and economic characteristics of the
service area and the economics of providing cable service to
subscribers in the service area.
§24D-1-15. Procedures for restoring interrupted service and
improving substandard service.
(a) Each cable operator, for the purpose of restoring
interrupted service and improving substandard service, shall be
able to receive calls twenty-four hours a day, seven days a week,
and shall have one or more qualified persons as may be necessary
to repair the cable system, facilities and equipment owned by the
cable operator and located on a subscriber's premises, including,
but not limited to, cable receiving equipment and directly
associated equipment.
(b) Each cable operator shall restore interrupted service
not later than twenty-four hours after being notified by a
subscriber that service has been interrupted, unless": (1) Sservice
cannot be restored until another company repairs facilities owned
by such company and leased to, or required for the operation of,
the cable service,; (2) the interruption was caused by an act of
nature,; or (3) the cable operator is unable to restore service
within twenty-four hours due to extenuating circumstances. In
the event of such extenuating circumstances, the company shall
restore service as soon as feasible and then submit a written
notice to the commission indicating that service has been
restored and explaining the nature of the extenuating
circumstances.
§24D-1-16. Credit or refund for interrupted service.
(a) If cable service to a subscriber is interrupted for more
than twenty-four continuous hours, such subscriber shall, upon
request, receive a credit or refund from the cable operator in an
amount that represents the proportionate share of such service
not received in a billing period, provided such interruption is
not caused by the subscriber.
(b) The commission may promulgate rules establishing a
viewing time reliability standard for cable operators and requiring such companies to file with the commission information
on service interruptions not caused by subscribers.
§24D-1-17. Office operating requirements; office hours.
Each cable operator shall operate a business office in or
near its area of operation as approved by the franchise authority
or the commission that shall be open during normal business
hours, and each cable operator shall operate sufficient telephone
lines, including a toll-free number or any other free calling
option, as approved by the commission, staffed by a company
customer service representative during normal business hours.
§24D-1-18. Notice to subscribers regarding quality of service.
(a) Annually, every cable operator shall mail to each of its
subscribers a notice which:
(1) Informs subscribers how to communicate their views and
complaints to the cable operator and to the commission;
(2) States the responsibility of the commission to receive
and act on consumer complaints concerning matters other than
channel selection, programming and rates; and
(3) States the policy regarding the method by which
subscribers may request rebates or pro rata credit as described
in section sixteen of this article.
(b) The notice shall be in nontechnical language, understandable by the general public, and in a convenient format.
On or before the thirtieth day of January each year, the operator
shall certify to the franchising authority and the commission
that it has distributed the notice as provided in this section
during the previous calendar year as required by this section.
§24D-1-19. Recording of subscriber complaints.
(a) Every cable operator shall keep a record or log of all
complaints received regarding quality of service, rates,
programming, equipment malfunctions, billing procedure, employee
relations with customers and similar matters as may be prescribed
by the commission. The records shall be maintained for a period
of two years.
(b) The record or log shall contain the following
information for each complaint received:
(1) Date, time, nature of complaint;
(2) Name, address, telephone number of complainant;
(3) Investigation of complaint; and
(4) Manner and time of resolution of complaint.
(c) Consistent with the subscriber privacy provisions
contained in 47 U.S.C. §551 as the same is in effect on the
effective date of this chapter, every cable operator shall make
the logs or records, or both, of such complaints available to any authorized agent of the commission and the franchising authority,
upon request during normal business hours for on-site review.
§24D-1-20. Franchise document clearinghouse.
(a) All cable operators holding an existing franchise on the
effective date of this article shall file a copy of the franchise
and any federal communications commission rulings or other
rulings affecting such franchises with the commission with the
annual report filed in one thousand nine hundred ninety-nine as
referenced in section twenty-four of this article.
(b) Within sixty days of the granting of an initial
franchise, a renewal franchise or a transferred franchise, the
franchisee shall file a copy of the franchise and any federal
communications commission rulings or other rulings affecting such
franchise with the commission and the franchising authority. The
commission and franchising authority shall maintain a file of all
franchise documents so recorded and make copies available upon
request for the cost of reproduction and mailing, plus a
reasonable administrative fee. The filing fee for initial,
renewal or transfer franchise documents is fifty dollars per
franchise, renewal or transfer of such franchise. In years in
which the filing of initial, renewal or transfer franchise
documents is not required, the franchisee shall pay a fee of twenty-five dollars for each franchise it holds.
(c) All such fees paid by any cable operator are franchise
fees with the intent and meaning of 47 U.S.C. §542 as the same is
in effect on the effective date of this chapter.
§24D-1-21. Rights of individuals.
A cable television system operator may not deny service,
deny access, or otherwise discriminate against subscribers,
channel users, or any other citizens on the basis of age, race,
religion, sex, physical handicap or country of natural origin.
§24D-1-22. Complaints; violations; penalties.
(a) Complaints of affected parties regarding the operation
of a cable system must be made in writing and filed with the
commission. The commission shall take up such complaints with
the cable operator complained against in an endeavor to bring
about satisfaction of the complaint without formal hearing. The
commission shall not consider any complaint involving programming
or any other issue that is preempted by federal law.
(b) The commission shall resolve all complaints, if possible
informally. No form of informal complaint is prescribed, but the
writing must contain the essential elements of a complaint,
including the name and address andof the complainant, the correct
name of the cable operator against which the complaint is made, a clear and concise statement of the facts involved and a request
for affirmative relief.
(c) In the event that the commission cannot resolve the
complaint to the satisfaction of all parties, the complainant may
file a formal request to the commission and the complainant and
cable operator shall be afforded all rights including the right
of appeal as set forth in chapter twenty-four of this code.
(d)A cable operator may be subject to a fine or civil
penalty in accordance with subsection (e) hereof, upon a
determination by the commission or court that the cable operator
has violated any of the following:
(1) The material terms of its cable franchise; or
(2) Substantial compliance with this article or rules or
orders prescribed by the commission.
(e) The commission may fine or obtain civil penalties
against a cable operator for each violation of subsection (d) of
this section in an amount not less than one hundred dollars nor
more than one thousand dollars for each violation. Any penalty
assessed under this section is in addition to any other costs,
expenses or payments for which the cable operator is responsible
under other provisions of this section.
(f) In addition to fines and civil penalties, the commission may determine and declare and by order require for violation of
subsection (d) of this section the cable operator to comply with
the terms of its franchise or the requirements of this article or
orders prescribed by the commission.
(g)No cable operator may raise rates or retier and charge
subscribers without providing to his or her subscribers
sufficient advance written notice and opportunity to discontinue
service.
§24D-1-23. Other duties of commission; suit to enforce chapter.
(a) The commission has the power and jurisdiction to
supervise every cable operator within this state so far as may be
necessary to carry out the purposes of this chapter and to do all
things which are necessary or convenient in the exercise of this
power and jurisdiction.
(b) The commission may adopt rules and regulations as are
necessary to implement the provisions of this article. The rules
and regulations promulgated by the cable advisory board pursuant
to repealed article eighteen, chapter five, and in force and in
effect on the thirty-first day of December, one thousand nine
hundred ninety-seven, shall remain in effect and hereby become
the rules and regulations of the commission.
(c) The commission or the commission's designated representatives may, from time to time, visit the places of
business and other premises and examine the records and
facilities of all cable operators to ascertain if all laws,
rules, regulations and cable franchise provisions have been
complied with, and may examine all officers, agents and employees
of cable operators and all other persons, under oath, and compel
the production of papers and the attendance of witnesses to
obtain the information necessary for administering this article.
(d) The commission may appoint or contract for assistants
and clerical, stenographic and other staff as may be necessary
for the proper administration and enforcement of this article.
(e) The commission or other aggrieved party may institute,
or intervene as a party in, any action in any court of law
seeking a mandamus, or injunctive or other relief to compel
compliance with this chapter, or any rule, regulation, or order
adopted hereunder, or to restrain or otherwise prevent or
prohibit any illegal or unauthorized conduct in connection with
this article.
§24D-1-24. Annual reports.
Each cable operator shall file annually with the commission
reports of its financial, technical and operational condition and
its ownership. The reports shall be made in a form and on the time schedule prescribed by the commission and shall be kept on
file open to the public.
§24D-1-25. Annual fees; effect of application and filing fees on
franchise fees.
(a) Each cable operator shall pay to the commission an
annual fee in an amount of twelve cents per subscriber. Such
funds and all other funds to be paid to the commission under the
provisions of this chapter shall be deposited into a special fund
designated the "cable fund." Such fund shall be used for
purposes of administering the provisions of this article. To the
extent permitted by federal law, the commission 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
chapter and the annual fee to be paid to the commission 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.
(c) The commission shall not impose on or collect from any
cable operator franchise fees when acting in the capacity as a
franchising authority, other than fees set out in subsection(a) of this section and any filing fee required by this article.
§24D-1-26. Cable television industry not regulated as a utility.
No provision of this article may be construed to grant the
commission the power to regulate the cable television industry as
a utility.
§24D-1-27. Current method of taxation preserved.
Enactment of the amendments to section onethree, article threeone,
chapter twenty-four of this code and this article in the year one
thousand nine hundred ninety-nine shall in no way change how
cable television providers, cable television property and cable
television services are taxed by this state or its political
subdivisions after the effective date of this enactment. For tax
purposes, providers of cable television services who do not
provide telephone services over the same system are not engaged
in providing a public service and are neither a public service
business nor a public utility as those terms were used in the tax
laws of this state and its political subdivisions on the thirty- first day of December, one thousand nine hundred ninety-eight,
and the cable television service furnished by them is not a
service subject to regulation by the public service commission
for purposes of exemption from tax under section eight, article
fifteen, chapter eleven of this code. This method of taxing providers of cable television services, their property and
services shall remain in effect until affirmatively changed by
the Legislature.
ARTICLE 2. TENANTS' RIGHTS TO CABLE SERVICES.
§24D-2-1. Legislative findings.
The Legislature finds and declares as follows:
(a) Cable television has become an important medium of
public communication and entertainment.
(b) It is in the public interest to assure apartment
residents and other tenants of leased residential dwellings
access to cable television service of a quality and cost
comparable to service available to residents living in personally
owned dwellings.
(c) It is in the public interest to afford apartment
residents and other tenants of leased residential dwellings the
opportunity to obtain cable television service of their choice
and to prevent landlords from treating such residents and tenants
as a captive market for the sale of television reception services
selected or provided by the landlord.
§24D-2-2. Definitions.
As used in this article:
(a) "Cable operator" means any person or group of persons:
(1) 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 (2) who otherwise controls or is responsible
for, through any arrangement, the management and operation of a
cable system.
(b) "Cable service" or "cable television service" means: (1)
The one-way transmission to subscribers of video programming or
other programming service; and (2) subscriber interaction, if
any, which is required for the selection of video programming or
other programming service.
(c) "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: (1) aA facility that serves
only to retransmit the television signals of one or more
television broadcast stations; (2) 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 (3) 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.
(d) "Cable television facilities" includes all 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.
(e) "Commission" or "Public Service Commission" shall mean
the public service commission of West Virginia.
(f) "Landlord" means a person owning, controlling, leasing,
operating or managing the multiple dwelling premises.
(g) "Multiple dwelling premises" means any area occupied by
dwelling units, appurtenances thereto, grounds and facilities,
which dwelling units are intended or designed to be occupied or
leased for occupation, or actually occupied, as individual homes
or residences for three or more households. The term includes
mobile home parks.
(h) "Person" means an individual, partnership, associate,
joint stock company, trust, corporation or governmental agency.
(i) "Tenant" means a person occupying single or multiple
dwelling premises owned or controlled by a landlord but does not
include an inmate or any person incarcerated or housed within any
state institution.
§24D-2-3. Landlord-tenant relationship.
(a) A landlord may not:
(1) Interfere with the installation, maintenance, operation
or removal of cable television facilities upon his property or
multiple dwelling premises, except that a landlord may require:
(A) That the installation of cable television facilities
conform to such reasonable conditions as are necessary to protect
the safety, functioning and appearance of the multiple dwelling
premises and the convenience and well-being of other tenants;
(B) That the cable operator or the tenant or a combination
thereof bear the entire cost of the installation or removal of
such facilities; and
(C) That the cable operator agrees to indemnify the landlord
for any damage caused by the installation, operation or removal
of such facilities;
(2) Demand or accept any payment from any tenant, in any
form, in exchange for permitting cable television service on or
within his property or multiple dwelling premises, or from any
cable operator in exchange therefor except as may be determined
to be just compensation in accordance with this article;
(3) Discriminate in rental charges, or otherwise, between
tenants who receive cable television service and those who do not.
(b) Provisions relating to cable television service or
satellite master antenna systems contained in rental agreements
and leases executed prior to the effective date of this article
may be enforced notwithstanding this section.
(c) A cable operator may not enter into any agreement with
the owners, lessees or persons controlling or managing the
multiple dwelling premises served by a cable television, or do or
permit any act, that would have the effect, directly or
indirectly, of diminishing or interfering with existing rights of
any tenant or other occupant of such building to use or avail
himself of master or individual antenna equipment.
(d) The cable operator shall retain ownership of all wiring
and equipment used in any installation or upgrade of a cable
system within any multiple dwelling premises.
§24D-2-4. Prohibition.
Except as provided in this article, no landlord may demand
or accept any payment from any cable operator in exchange for
permitting cable television service or facilities on or within
the landlord's property or multiple dwelling premises.
§24D-2-5. Just compensation.
Every landlord is entitled to a single payment of just compensation for property taken by a cable operator for the
installation of cable television service or facilities. The
amount of just compensation, if not agreed between the landlord
and cable operator, shall be determined by the commission in
accordance with this article upon application by the landlord
pursuant to section eight of this article. A landlord is not
entitled to just compensation in the event of a rebuild, upgrade
or rewiring of cable television service or facilities by a cable
operator.
§24D-2-6. Right of entry.
A cable operator, upon receiving a request for service by a
tenant or landlord, has the right to enter property of the
landlord for the purpose of making surveys or other
investigations preparatory to the installation. Before such
entry, the cable operator shall serve notice upon the landlord
and tenant, which notice shall contain the date of the entry, the
name and address of the cable operator, the name and address of
the landlord, from whom the request for service was received, and
a citation to this act. The cable operator is liable to the
landlord for any damages caused by such entry but such damages
shall not duplicate damages paid by the cable operator pursuant
to section eight of this article.
§24D-2-7. Notice of installation.
(a) Every cable operator proposing to install cable
television service or facilities upon the property of a landlord
shall serve upon said landlord and tenant, or an authorized
agent, written notice of intent thereof at least fifteen days
prior to the commencement of such installation. Verbal notice to
the tenant shall be legally sufficient if the date and time of
entry is communicated to the tenant by either the landlord or
cable operator at least twenty-four hours prior to entry.
(b) The commission shall prescribe the procedure for service
of such notice, and the form and content of such notice, which
shall include, but need not be limited to:
(1) The name and address of the cable operator;
(2) The name and address of the landlord;
(3) The approximate date of the installation; and
(4) A citation to this act.
(c) Where the installation of cable service or facilities is
not effected pursuant to a notice served in accordance with this
section, for whatever reason including denial of entry by the
landlord, the cable operator may file with the board a petition,
verified by an authorized person from the cable operator, setting
forth:
(1) Proof of service of a notice of intent to install cable
television service upon the landlord;
(2) The specific location of the real property;
(3) The resident address of the landlord, if known;
(4) A description of the facilities and equipment to be
installed upon the property, including the type and method of
installation and the anticipated costs thereof;
(5) The name of the individual or officer responsible for
the actual installation;
(6) A statement that the cable operator shall indemnify the
landlord for any damage caused in connection with the
installation, including proof of insurance or other evidence of
ability to indemnify the landlord;
(7) A statement that the installation shall be conducted
without prejudice to the rights of the landlord to just
compensation in accordance with section eight of this article;
(8) A summary of efforts by the cable operator to effect
entry of the property for the installation; and
(9) A statement that the landlord is afforded the
opportunity to answer the petition within ten days from the
receipt thereof, which answer must be responsive to the petition
and may set forth any additional matter not contained in the petition.
If no answer is filed within the time permitted, the
commission shall grant the petitioning cable operator an order of
entry and installation, which order constitutes a ruling that the
petitioning cable operator has complied with the requirements of
this article. If the landlord files a written answer to the
petition, the cable operator shall have ten days within which to
reply to the answer. The commission may grant or deny the
petition, schedule an administrative hearing on any factual
issues presented thereby or direct such other procedures as may
be consistent with the installation of cable television service
or facilities in accordance with this article. The only basis
upon which the commission may deny a petition by the cable
operator is that the cable operator has not complied with the
requirements of this article.
Within thirty days of the date of grant or denial of the
petition, or issuance of any other order by the commission
following a hearing or other procedure, the cable operator or
landlord may appeal such grant or denial or order of the
commission to the circuit court of Kanawha cCounty. Any order
issued by the commission pursuant to this section may be enforced
by an action seeking injunctive or mandamus relief in circuit court where the property is located.
§24D-2-8. Application for just compensation.
(a)If the landlord and cable operator have not reached
agreement on the amount of just compensation, a landlord may file
with the commission an application for just compensation within
four months following the service by the cable operator of the
notice described in section eight of this article, or within four
months following the completion of the installation of the cable
television facilities, whichever is later.
(b) An application for just compensation shall set forth
specific facts relevant to the determination of just
compensation. Such facts should include, but need not be limited
to, a showing of:
(1) The location and amount of space occupied by the
installation;
(2) The previous use of such space;
(3) The value of the applicant's property before the
installation of cable television facilities and the value of the
applicant's property subsequent to the installation of cable
television facilities; and
(4) The method or methods used to determine such values.
The commission may, upon good cause shown, permit the filing of supplemental information at any time prior to final determination
by the commission.
(c) A copy of the application filed by the landlord for just
compensation shall be served upon the cable operator making the
installation and upon either the mayor or county commission of
the municipality or county, respectively, in which the real
property is located when the municipality or county is the
franchise authority.
(d) Responses to the application, if any, shall be served on
all parties and on the commission within twenty days from the
service of the application.
(e)(1) The commission shall within sixty days of the receipt
of the application, make a preliminary finding of the amount of
just compensation for the installation of cable television
facilities.
(2) Either party may, within twenty days from the release
date of the preliminary finding by the commission setting the
amount of just compensation, file a written request for a
hearing. Upon timely receipt of such request, the commission
shall conduct a hearing on the issue of compensation.
(3) In determining just compensation, the commission may
consider evidence introduced including, but not limited to, the following:
(A) Evidence that a landlord has a specific alternative use
for the space occupied or to be occupied by cable television
facilities, the loss of which will result in a monetary loss to
the owner;
(B) Evidence that installation of cable facilities upon such
multiple dwelling premises will otherwise substantially interfere
with the use and occupancy of such premises to the extent which
causes a decrease in the resale or rental value; or
(C) Evidence of increase in the value of the property
occurring by reason of the installation of the cable television
facilities.
(4) For purposes of this article, the commission shall
presume that a landlord has received just compensation from a
cable operator for the installation within a multiple dwelling
premises if the landlord receives compensation in the amount of
one dollar for each dwelling unit within the multiple dwelling
premises or one hundred dollars for the entire multiple dwelling
premises, whichever amount is more.
(5) If, after the filing of an application, the cable
operator and the applicant agree upon the amount of just
compensation, a hearing shall not be held on the issue.
(6) Within thirty days of the date of the notice of the
decision of the commission, either party may appeal the decision
of the commission in the circuit court of Kanawha cCounty
regarding the amount awarded as compensation.
§24D-2-9. Existing cable services protected.
Cable services being provided to tenants on the effective
date of this article may not be prohibited or otherwise prevented
so long as the tenant continues to request such services.
§24D-2-10. Exception.
Notwithstanding any provision in this article to the
contrary, a landlord and cable operator may by mutual agreement
establish the terms and conditions upon which cable television
facilities are to be installed within a multiple dwelling
premises without having to comply with the provisions of this
article.