Senate Bill No. 487
(By Senators Minard, Wagner, Wiedebusch,
Chernenko, Bailey, Dittmar and Macnaughtan)
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[Introduced March 22, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections four and seven, article
eighteen, chapter five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said chapter by adding thereto a new article,
designated article eighteen-a, all relating to increasing
the per diem for board members and tenants' rights to cable
television; procedure for notifying landlord of request to
cable operator to provide cable services; compensation for
any physical damage to premises of landlord; availability of
proceeding before cable board in the event of disagreement
between landlord and cable operator; and protection of
existing cable television services.
Be it enacted by the Legislature of West Virginia:
That sections four and seven, 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 chapterbe further amended by adding thereto a new article, designated
article eighteen-a, 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 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 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 notifythe 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 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
board.
(e)
If a county commission elects not to act as the
franchise authority, the board shall become the franchise
authority. Any municipality or county commission may elect not
to act as a franchising authority, in which event the franchisingauthority for any cable system to be constructed, operated,
acquired or extended within the jurisdiction of such municipality
or within the jurisdiction of such county commission shall be the
board. 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 promptly
made upon written request of the board or the cable operator.
§5-18-7. Compensation and expenses of board members.
Each member of the board not otherwise employed by the state
shall receive a per diem in the amount of
fifty one hundred
dollars while actually engaged in the performance of the duties
of the board, which shall be paid out of the cable advisory board
fund created under the provisions of this article. Each member
shall be reimbursed for all reasonable and necessary expenses
actually incurred during the performance of his or her duties.
Each member shall receive meals, lodging and mileage expense
reimbursements at the rates established by rule of the secretary
of the department of administration for in-state travel of public
employees. The reimbursement shall be paid out of the state
treasury upon a requisition upon the state auditor, properly
certified by the chairman of the board.
ARTICLE 18A. TENANTS' RIGHTS TO CABLE SERVICES.
§5-18A-1. Short title.
This article shall be known and may be cited as the
"Tenants' Rights to Cable Services Act."
§5-18A-2. Legislative findings.
The Legislature finds and declares as follows:
(a) Cable television has become an important medium of
public communication, education 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.
§5-18A-3. Definitions.
As used in this article:
(a) "Board" means the West Virginia cable television
advisory board created under the provisions of article eighteen
of this chapter.
(b) "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 inthe cable system or (2) who otherwise controls or is responsible
for, through any arrangement, the management and operation of a
cable system.
(c) "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.
(d) "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) a 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.
(e) "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 itssubscribers.
(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.
§5-18A-4. 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) 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.
§5-18A-5. 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.
§5-18A-6. 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 board in
accordance with this article upon application by the landlord
pursuant to section nine 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.
§5-18A-7. 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,
which notice shall contain the date of the entry and all other
information described in subdivision (b), section eight of this
article. 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 nine of
this article.
§5-18A-8. Notice of installation.
(a) Every cable operator proposing to install cable
television service or facilities upon the property of a landlordshall serve upon said landlord, or an authorized agent, written
notice of intent thereof at least fifteen days prior to the
commencement of such installation.
(b) The board 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 television 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 thelandlord 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 nine 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 twenty 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 appearance by the landlord is made in the proceeding
or no answer filed within the time permitted, the board shall
grant to the petitioning cable operator an order of entry, 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 board 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
board may deny a petition by the cable operator is that the cableoperator 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 board following
a hearing or other procedure, the cable operator or landlord may
appeal such grant or denial or order of the board to the circuit
court of Kanawha County.
§5-18A-9. 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 board 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 board may, upon good cause shown, permit the filing of
supplemental information at any time prior to final determination
by the board.
(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.
(d) Responses to the application, if any, shall be served on
all parties and on the board within twenty days from the service
of the application.
(e) (1) The board 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 board setting the amount
of just compensation file a written request for a hearing. Upon
timely receipt of such request, the board shall conduct a hearing
on the issue of compensation.
(3) In determining just compensation, the board may
consider, among other things, 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, or that installation of cable
facilities upon such multiple dwelling premises will otherwise
substantially interfere with the use and occupancy of suchpremises to the extent which causes a decrease in the resale or
rental value thereof shall be considered. In addition, an
increase in the value of the property occurring by reason of the
installation of the cable television facilities may also be
considered by the board by deducting such amount from the amount
of just compensation.
(4) For purposes of this article, it shall be presumed 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 board, either party may appeal the decision of
the board in the circuit court of Kanawha County regarding the
amount awarded as compensation.
§5-18A-10. 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.
§5-18A-11. Exception.
Notwithstanding any provision in this article to thecontrary, 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.
NOTE: The purpose of this bill is to increase the per diem
for board members of the cable television advisory board, make a
technical correction concerning the board acting as the franchise
authority and to establish a new article which will provide for
tenants' rights to cable television.
Strike-throughs indicate language that would be deleted from
current law, and underscoring indicates language that would be
added.
§5-18A is new; therefore, strike-throughs and underscoring
have been omitted.
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