Senate Bill No. 339
(By Senators Chafin and Minard)
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[Introduced February 14, 1994; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section four, article eighteen,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
article by adding thereto a new section, designated section
thirty-one, all relating to the West Virginia cable
television systems act; cable franchising authority; when
the West Virginia cable television advisory board may become
the franchise authority; and providing for late fees.
Be it enacted by the Legislature of West Virginia:
That section four, article eighteen, chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said article be
further amended by adding thereto a new section, designated
section thirty-one, all to read as follows:
ARTICLE 18. WEST VIRGINIA CABLE TELEVISION SYSTEMS ACT.
§5-18-4. Cable franchise required; franchising authority.
(a) No person may construct, operate or acquire a cablesystem, 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 article.
(b) Any person operating a cable system on the effective
date of this article without a franchise shall, within sixty days
of the effective date of this article, notify the board 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; and (4) the number of subscribers within
the cable system or systems. If the board shall not have been
appointed and organized within sixty days of the effective date
of this article, then such filing shall be made with the public
service commission where such documents shall be retained for
delivery to the board following the appointment and organization
of its members.
(c) The board 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
shall, within sixty days of receipt of such notice from the
board, make formal application to the appropriate franchisingauthority 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
board.
(e) If a county commission elects not to act as the
franchise authority, the board shall become the franchise
authority. A county commission acting as a franchise authority
for unincorporated areas of the county may elect separately to
transfer to the board any franchise authority acquired from a
municipality. If any municipality or county commission so elects
not to be the franchise authority, the mayor or president of the
county commission shall certify such delegation in writing to the
presiding officer of the board. Such election shall be promptlymade upon written request of the board or the cable operator.
(e) If any municipality or county commission elects not to
act as the franchise authority on or before the first day of
September, one thousand nine hundred ninety-four, the board shall
become the franchise authority. The election not to act as the
franchise authority, shall be deemed to have been made by a
municipality or county if by the first day of September, one
thousand nine hundred ninety-four, no valid franchise agreement
exists between any municipality or county commission and any
cable operator operating a cable system within said
municipality's or county commission's jurisdiction. Where more
than one cable system is in operation in a municipality or
county, this subsection applies only to the municipality's or
county commission's authority to be the franchise authority for
any cable system not having a franchise agreement on the first
day of September, one thousand nine hundred ninety-four, and,
this subsection will not otherwise invalidate an existing
franchise. Further, when the board acts as franchising authority
following a municipality's or county commission's election not to
act as the franchising authority, the board shall remit to the
municipality or county commission the amount of any franchise fee
allowed under 47 U.S.C. §542, and paid by the cable operator,
except that the board may retain a portion of the franchise fee
not to exceed one percent of such cable operator' gross revenues
derived from the operation of the cable system:
Provided,
That
to be eligible to receive the payment of any excess franchise feethe municipality or county commission must, within ninety days
following receipt of written notice from the board that the board
will be acting as franchise authority, pass an ordinance or enter
an order establishing the franchise fee to be imposed on the
cable operator. The board shall give thirty days written notice
to a cable operator for whom the board becomes the franchise
authority under this section to file an application for franchise
with the board. Failure of a cable operator to file an
application for franchise with the board is a violation of this
article.
§5-18-31. Late fees.
(a) For the purpose of this section, "late fees" includes
any fee, assessment or charge levied by a cable operator for the
purpose of recovering the costs of billing and processing
balances unpaid by the scheduled due date of a delinquent
subscriber's monthly bill.
(b) Cable operators that elect to charge late fees must use
one of the following methods:
(1) A fixed rate fee not to exceed five dollars may be
charged on the unpaid balance after the scheduled due date;
(2) A percentage fee not to exceed five percent may be
charged on the unpaid balance after the scheduled due date.
(c) Cable operators must provide written notice to cable
subscribers of the operator's late fee policy prior to charging
any late fees. One of the following methods shall be used:
(1) For companies with monthly, bi-monthly or quarterlybilling periods, notice shall be printed on or supplied with each
billing statement detailing the scheduled due date and the amount
or percentage rate of any possible late fee;
(2) For companies with annual or coupon book billing
systems, a written notice must be supplied to each subscriber at
least annually detailing the due date and amount or percentage
rate of any possible late fee. This information may be included
with any notice required by this article or by federal law to be
delivered to subscribers.
(d) Any late fee charged by a cable operator may be
collected only once on any individual billing statement for a
billing period, however long it remains unpaid.
(e) A late fee may not be imposed unless the scheduled due
date of a payment is at least fifteen days following the date the
bill or statement for such payment is mailed to the subscriber by
placing the same, postage prepared, in the United States mail.
NOTE: The purpose of this bill is to authorize the West
Virginia Cable Television Advisory Board to become the
franchising authority for a cable television system if a county
commission or municipality has failed to act as a franchising
authority by September 1, 1994. The bill authorizes the advisory
board to collect the franchise fee and remit it to the county or
municipality while retaining 1%. And, it authorizes a late fee
charge and requires written notice to cable subscribers of the
operator's policy, prior to charging late fees.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Section 31 is new; therefore, strike-throughs and
underscoring have been omitted.