HB2002 S GOV AM #1 3-31
The Committee on Government Organization moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
CHAPTER 17. ROADS AND HIGHWAY.
ARTICLE 2E. DIG ONCE POLICY.
§17-2E-3. Use of rights-of-way; broadband conduit installation in rights-of-way; permits; agreements; compensation; valuation of compensation; telecommunications facilities construction and installation in rights of way.
(a) Before obtaining a permit for the construction or
installation of a telecommunications facility in a right-of-way, a
telecommunications carrier, must enter into an agreement with the division
consistent with the requirements of this article. (b) Before granting a permit for longitudinal access or
wireless access to a right-of-way, the division shall: (1) First enter into an agreement with a
telecommunications carrier, that is competitively neutral and nondiscriminatory
as to other telecommunications carriers, and (2) Upon receipt of any required approval or
concurrence by the Federal Highway Administration the division may issue a
permit granting access under this section: Provided, That the division
shall comply with all applicable federal regulations with respect to approval
of an agreement, including, but not limited to, 23 C.F.R. §710.403 and 23
C.F.R. §710.405. The agreement shall be approved by the Commissioner of
Highways in order to be effective and, without limitation: (A) Specify the terms and conditions for renegotiation
of the agreement; (B) Set forth the maintenance requirements for each
telecommunications facility; (C) Be nonexclusive; and (D) Be for a term of not more than 30 years; (c) Unless specifically provided for in an agreement
entered into pursuant to subsection (a) of this section, the division may not
grant a property interest in a right-of-way pursuant to this article. (d) A telecommunications carrier shall compensate the
division for the use of spare conduit or related facilities owned or controlled
by the division as part of any longitudinal access or wireless access granted
to a right-of-way pursuant to this section. The compensation must be, without
limitation: (1) At fair market value: Provided, That because
the social, environmental, and economic benefits from such use of state highway
rights-of-way is of overwhelming value to the citizens of this state and is in
the overall public interest, the division shall establish the fair market value
for purposes of this article at $0 in monetary compensation; (2) Competitively neutral; (3) Nondiscriminatory; (4) Open to public inspection; (5) Determined based on the geographic region of this
state, taking into account the population and the impact on private
right-of-way users in the region; and once determined, set at an amount that
encourages the deployment of digital infrastructure within this state; and (6) Paid with in-kind compensation. (e) The division may consider adjustments for areas the
division, in conjunction with the council, determines are underserved or
unserved areas of the state and may consider the value to such areas for
economic development, enhancing the transportation system, expanding
opportunities for digital learning, and telemedicine. (f) For the purpose of determining the amount of in-kind
compensation a telecommunications carrier must pay the division for the use of
spare conduit or excess conduit or related facilities of the division as part
of any longitudinal access or wireless access granted to a right-of-way
pursuant to this section, the division may: (1) Conduct an analysis once every five years, in
accordance with the rules, policies, or guidelines of the division, to
determine the fair market value of a right-of-way to which access has been
granted pursuant to this section; and (2) Determine the fair market value of the in-kind
compensation based on the incremental costs for the installation of conduit and
(a) If in-ground construction or installation of a telecommunications facility in rights-of-way owned or controlled by the division serves a public purpose and shall be accommodated as a utility pursuant to federal and state law, the division will receive applications and issue a permit consistent with this section with respect to requirements and conditions for performing work in division rights-of-way.
(b) Upon receipt of a complete application as specified in the Accommodation of Utilities on Highway Right-of-Way and Adjustment and Relocation of Utility Facilities on Highway Projects Policy, or equivalent policy, as may be currently enforced by the division, that specifies the requirements and conditions for performing work in a right-of-way, the division shall, within 60 business days, advise applicant in writing of any deficiencies with the planned project that:
(1) Adversely affect the safety, design, construction, operation, maintenance, or stability of the state road system;
(2) Interfere with or impair the present use or planned future expansion of any affected highway or bridge;
(3) Conflict with applicable division policy with respect to requirements and conditions for performing work in division rights-of-way; or
(4) Violates applicable federal or state law.
(c) An applicant may correct any deficiencies and resubmit the application, which shall be reviewed by the division and either approved or denied within 30 days of the resubmittal. Any denial of a resubmittal shall be in writing and explain any deficiencies as provided in subsection (b) of this section. After the division approves a permit application, notwithstanding any other provision of this code to the contrary, the division shall issue a specific district level construction authorization for the approved project within 10 business days unless specific logistical issues reasonably prevent commencement.
(d) Compliance with applicable environmental laws shall at all times be the responsibility of the applicant. If any environmental clearance must be performed by the division before an application is approved, the division will notify the applicant in writing of all necessary requirements for such clearance within 15 business days of receiving a complete application. The division will also provide a list of all known federal and state entities with whom an applicant may also need to consult and coordinate for environmental clearance purposes.
(e) The division will create and make available for potential applicants an informational notice specific to in-ground telecommunications facility construction and installation that explains routine issues for such projects, including a consolidated checklist or flow chart of all state or federal regulatory requirements, including but not limited to applicable permits, required reviews, required approvals, and required forms. The division shall annually update such informational notice for accuracy and completeness by coordination with each state or federal agency having required regulatory action in the permitting process legal, regulatory, and division requirements and may request the assistance of the Office of Broadband in preparing this informational notice.
(f) The provisions of this article shall not apply to the relocation or
modification of existing telecommunications facilities in a right-of-way, nor
shall these provisions apply to aerial telecommunications facilities or
associated apparatus or equipment in a right-of-way. Relocation of
telecommunications facilities within rights-of-way for state highways shall be
in accordance with the provisions of §17-4-17b of this code.
§17-2E-5. Telecommunications carrier initiated construction and joint use.
(a) Upon application for a permit, the
telecommunications carrier applicant shall notify, by email, the council
Office of Broadband and all other telecommunications carriers on record
with the council office of the application. Other
telecommunications carriers have 15 calendar days to notify the applicant of
their interest to share the applicant’s trench. This requirement extends to all
underground construction technologies.
(b) If no competing telecommunications carrier provides
notice of interest to share the applicant’s trench within 15 calendar days of
notice of the project, the
carrier applying for the permit applicant
shall affirm that fact to the division prior to being issued a permit provide
written certification in accordance with subsection (g) of this section.
(c) If a competing telecommunications carrier provides notice of interest to share the applicant’s trench, an agreement between the two (or more) telecommunications carriers shall be executed by those entities within 30 days of the notice of interest, outlining the responsibilities and financial obligations of each, with respect to the installation within the right-of-way. The financial obligations of each carrier shall be based on the proportionate sharing of costs between each carrier for joint trenching or trench sharing based on the amount of conduit or innerduct space or excess conduit that is authorized in the agreements entered into pursuant to this article. If the division uses a trench, it shall also pay its proportional share unless it is utilizing the trench as in-kind payment for use of the right-of-way, or the division has otherwise determined, in its sole discretion, that including the division in the apportionment of costs is not warranted. A copy of the executed agreement shall be provided to the division.
(d) Should a dispute arise between the initial applying telecommunications carrier and a competing telecommunications carrier, including a failure to execute an agreement required by subsection (c) of this section, the dispute shall be adjudicated by the Public Service Commission. All disputes brought to the Public Service Commission under this article shall be adjudicated within 45 days.
(e) If two or more telecommunications carriers are required or authorized to share a single trench, each carrier in the trench must share the cost and benefits of the trench in a fair, reasonable, competitively neutral, and nondiscriminatory manner. This requirement extends to all underground construction technologies.
The commissioner of the
division shall promulgate rules governing the relationship between the
telecommunications carriers, as hereinafter provided in this article (g) The provisions of this section do not apply to
the following projects:
(1) Projects where the total continuous length of the trench is less than 1,000 feet;
(2) Projects that use the direct bury of cable or wire facilities;
(3) Projects that are solely for the service of entities involved in national security matters or where the disclosure or sharing of a trench location would be against federal policy; or
(4) Projects made available for lease to competing
telecommunications carriers on a nondiscriminatory basis at rates established
by the rules of the Federal Communications Commission Projects where the
telecommunications carrier installs an amount of spare conduit or innerduct
equal to what is being installed for its own use and which is given to the
Office of Broadband. Such spare conduit or innerduct shall be made
available for sale or lease to competing telecommunications carriers on
a nondiscriminatory basis at rates apportioned on the basis of the cost of
the installation thereof, to other telecommunications providers, and the
revenues derived from such sale, less any costs associated therewith, shall be
remitted to the telecommunications carrier that installed such spare conduit or
established by the rules of the Federal Communications
Commission in a manner consistent with all applicable state and federal
law and regulations. All carriers installing spare conduit or innerduct
shall notify the council and the Office of Broadband of the location and
capacity of such spare conduit and innerduct upon completion of the project,
and the council shall make such information publicly available for competing
(g) The Office of Broadband is responsible for ensuring compliance with this section and will provide the division and the applicant with certification of compliance at such time as the applicant has met all of the requirements of this section.
§17-2E-6. In-kind compensation.
Multiple carriers in a single trench. Use
of telecommunications facilities owned or controlled by Division of Highways. (a) If the Division of Highways enters into an agreement
with two or more telecommunications carriers, a consortium or other entity
whose members, partners or other participants are two or more
telecommunications carriers, or, if the Division requires or allows two or more
telecommunications carriers to share a single trench, the agreements entered
into pursuant to this article shall require that the telecommunications
carriers share the obligation of compensating the Division of Highways on a
fair, reasonable and equitable basis, taking into consideration the
proportionate uses and benefits to be derived by each telecommunications
carrier from the trench, conduits, and other telecommunications facilities
installed under the agreements. (b) The provisions of §17-2E-7(a) of this code do not
prevent the Division of Highways from requiring every participating
telecommunications carrier to bear joint and several liability for the
obligations owed to the Division of Highways under the agreements. (c) Any agreement requiring two or more
telecommunications carriers to share the obligation of compensating the
Division of Highways shall provide the Division the right to review and audit
the records and contracts of and among the participating carriers to ensure
compliance with §17-2E-7(a) of this code
The division may enter into an agreement and issue a permit consistent with the requirements of §17-2E-3 of this code to allow any carrier to use excess telecommunications facilities owned or controlled by the division: Provided, That this section shall be subject to the provisions of the Vertical Real Estate Management and Availability Act, as provided for in §31G-5-1 et seq. of this code, and no excess telecommunications facilities owned or controlled by the division subject to §31G-5-1 et seq. of this code shall be governed by the provisions of this section.
Existing policies. Disposal of
in-kind compensation; excess telecommunications facilities. (a) The requirements set forth in this article do not
alter existing rules, policies, and procedures relating to other utility
facilities within a right-of-way or for accommodating utility facilities or
other facilities under the control of the Division of Highways. (b) The Division of Highways may consider the financial
and technical qualifications of a telecommunications carrier when determining
specific insurance requirements for contractors authorized to enter a
right-of-way to construct, install, inspect, test, maintain, or repair
telecommunications facilities with longitudinal access or wireless access to
the right-of-way. (c) If the Division of Highways authorizes longitudinal
access, wireless access, or the use of, and access to, conduit or related
facilities of the Division for construction and installation of a
telecommunications facility, the Division may require an approved
telecommunications carrier to install the telecommunications facility in the
same general location as similar facilities already in place, coordinate their
planning and work with other contractors performing work in the same geographic
area, install in a joint trench when two or more telecommunications carriers
are performing installations at the same time and equitably share costs between
such carriers. (d) The placement, installation, maintenance, repair,
use, operation, replacement, and removal of telecommunications facilities with
longitudinal access or wireless access to a right-of-way or that use or access
conduit or related facilities of the Division shall be accommodated only when
in compliance with this code and Division of Highways rules, policies and
guidelines. (e) Access to a right-of-way must be administered in
compliance with the Telecommunications Act of 1996, 47 U.S.C. §151, et seq.,
Upon written approval of the Governor, the division may transfer or assign the ownership, control, or any rights related to any excess telecommunications facilities owned or controlled by the division to any other state agency.
§17-2E-9. Rule-making authority.
The Commissioner of the Division of Highways may
promulgate rules pursuant to the provisions of §29A-3-15 of this code as may be
necessary to carry out the purpose of this article, and as may have been
specifically delineated within this article
The commissioner of the division may promulgate rules pursuant to the provisions of §29A-3-1 et seq. of this code as may be necessary to carry out the purpose of this article.
CHAPTER 31G. BROADBAND ENHANCEMENT AND EXPANSION POLICIES.
ARTICLE 1. BROADBAND ENHANCEMENT COUNCIL.
§31G-1-4. Powers and duties of the council generally.
(a) The council shall
(1) Explore any and all ways to expand access to broadband services, including, but not limited to, middle mile, last mile and wireless applications;
(2) Gather data regarding the various speeds provided to consumers in comparison to what is advertised. The council may request the assistance of the Legislative Auditor in gathering this data;
(3) Explore the potential for increased use of broadband service for the purposes of education, career readiness, workforce preparation and alternative career training;
(4) Explore ways for encouraging state and municipal
agencies to expand the development and use of broadband services for the
purpose of better serving the public, including audio and video streaming,
voice-over Internet protocol, teleconferencing and wireless networking;
(5) Cooperate and assist in the expansion of electronic instruction and distance education services; and
(6) Explore ways to achieve digital equality of opportunity throughout the state, which is a condition where all individuals and communities have the information technology capacity needed for full participation in our society, democracy and economy.
(b) In addition to the powers set forth elsewhere in this
article, the council is hereby granted
has and may exercise the powers
authority necessary or appropriate to carry out and effectuate the
purpose and intent of this article, as to: The council shall have
the power and capacity to (1) Provide consultation services to project sponsors
in connection with the planning, acquisition, improvement, construction or
development of any broadband deployment project (2) (1) Promote awareness of public
facilities that have community broadband access that can be used for distance
education and workforce development; (3) (2) Advise on deployment of e-government
portals such that all public bodies and political subdivisions have homepages,
encourage one-stop government access and that all public entities stream audio
and video of all public meetings; (4) (3) Make and execute contracts,
commitments and other agreements necessary or convenient for the exercise of
its powers , including, but not limited to, the hiring of consultants to assist in the mapping of
the state and categorization of areas within the state; (5) (4) Acquire by gift or purchase, hold,
or dispose of real property and personal property in the exercise of its powers
and performance of its duties as set forth in this article; and (4) (5) Receive and dispense funds
appropriated for its use by the Legislature or other funding sources or
solicit, apply for and receive any funds, property or services from any person,
governmental agency or organization to carry out its statutory duties. (7) to oversee the use of conduit installed pursuant to
section two of article three of this chapter; and to (8) Perform any and all other activities in furtherance
of its purpose
(c) The council shall
exercise its powers and authority
to advise and make recommendations to the Legislature Office of
Broadband, and shall coordinate with the office on bringing
broadband service to unserved and underserved areas, as well as to propose
statutory changes that may enhance and expand broadband in the state.
(d) The council shall report to the Secretary of Economic
Joint Committee on Government and Finance on or before January
December 1 of each year. The report shall include the action that was
taken by the council during the previous year in carrying out the provisions of
this article, The council shall also make any other reports as may be
required by the Legislature or the Governor.
§31G-1-9. Collection of data.
ARTICLE 1A. OFFICE OF BROADBAND.
§31G-1A-1. Office of Broadband; Director of Office.
There is hereby established an Office of Broadband, which shall be organized within the Department of Economic Development under the authority of the Secretary of Economic Development. The Office of Broadband shall be managed by a director, who shall report to the Secretary of Economic Development. The Office of Broadband shall also report to the Joint Committee on Government and Finance of the West Virginia Legislature on or before December 30 of each year.
§31G-1A-2. Powers and duties of the Office of Broadband generally.
(a) The Office of Broadband shall have the following duties:
(1) Explore any and all ways to expand access to broadband services, including, but not limited to, middle mile, last mile, and wireless applications;
(2) Gather data regarding the various speeds provided to consumers in comparison to what is advertised. The office may request the assistance of the Legislative Auditor in gathering this data;
(3) Cooperate and assist in the expansion of electronic instruction and distance education services;
(4) Gather and report data regarding the adoption by broadband services, by speed, and by community, separately for residential and non-residential consumers;
(5) Gather and report data regarding prices charged for broadband services to residential and non-residential consumers, including, but not limited to one-time fees, monthly fees, termination fees, equipment fees, and other fees;
(6) Incorporate the goal of digital equality in its fulfillment of responsibilities, which is a condition where all individuals and communities have the information technology capacity needed for full participation in our society, democracy, and economy; and
(7) Provide for the increased public awareness of issues concerning broadband services.
(b) In addition to the powers set forth elsewhere in this article, the Office of Broadband is hereby granted the authority necessary and appropriate to carry out and effectuate the purpose and intent of this article, including, but not limited to, the authority to:
(1) Make and execute contracts, commitments, and other agreements necessary or convenient for the exercise of its powers, including, but not limited to, the hiring of consultants to assist in the mapping of the state and categorization of areas within the state;
(2) Acquire by gift or purchase, hold, or dispose of real or personal property in the exercise of its powers and performance of its duties as set forth in this article;
(3) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for, and receive any funds, property, or services from any person, governmental agency, or organization to carry out its statutory duties;
(4) To oversee the use of conduit installed pursuant to §31G-3-2 of this code;
(7) Create guidelines for, and recommend to the Legislature, a means of implementing a voluntary donation program to allow for pipeline, railroad, and other similar structures and rights-of-way in the state to be donated to the state for use by public or private entities to facilitate broadband service and availability through placement of fiber;
(8) Create guidelines for, and recommend to the Legislature, a means of implementing a program to allow for an easement program to be established to allow public or private entities to facilitate broadband service and availability through placement of fiber;
(9) Coordinate with the Consumer Protection Division of the Office of the Attorney General to provide for the following consumer protections:
(A) If a broadband service to a subscriber is interrupted for more than 24 continuous hours, such subscriber shall, upon request, receive a credit or refund from the broadband 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) A broadband 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, political affiliation, political views, or exercise of other speech protected by the 1st Amendment to the United States Constitution, or country of natural origin;
(C) A broadband operator shall provide subscribers 30 days advance written notice of any changes to rates or charges, including the expiration of any promotion or special pricing that would result in an increase in the subscribers billing or cost of service; and
(D) A broadband operator shall inform subscribers and provide written notice to subscribers that disputes regarding interrupted or substandard service or billing issues, which are unresolved to satisfaction of the subscriber; and
(10) Perform any and all other activities in furtherance of the purposes of this article.
(c) In furtherance of the purposes of this article, the Office of Broadband is permitted to seek non-state funding and grants. The Office of Broadband may utilize funding and grants to support the responsibilities, initiatives, and projects set forth in this article. The Office of Broadband may additionally disburse such moneys to fund projects and initiatives in furtherance of the enhancement and expansion of broadband services in this state, and the other purposes of this article.
(a) Based on its analysis of data, broadband demand, and other relevant information, the Office of Broadband shall establish a mapping of broadband services in the state. The council shall publish an annual assessment and map of the status of broadband, including specific designations of unserved areas of the state. With respect to unserved areas of the state, the Office of Broadband shall, to the extent it is able, map project areas with funding provided by public entities. For the purposes of this section, the term “unserved area” means an area lacking broadband internet service from at least one terrestrial broadband internet service provider offering all of the following in at least one service plan to residential consumers: (1) an actual downstream data rate of at least 25 megabits per second; and (2) an actual upstream data rate of at least three megabits per second; and (3) unlimited data usage without overage charges; and (4) unlimited data usage without “throttling” or reduction of downstream or upstream data rate due, in whole or in part, to the amount of data transferred in any period.
(b) To the extent possible, and subject to limitations contained in subsection (g) of this section, the Office of Broadband shall additionally establish an interactive public map reflecting estimated or actual downstream data rate and upstream data rate in a particular region, area, community, street or location. Any such mapping may only specify data rates at a particular street address or physical location, and shall not make public the IP address or the name of the specific individual at such location. This map shall be known as the West Virginia Broadband Availability Map.
(c) To the extent possible, and subject to limitations contained in subsection (g) of this section, the Office of Broadband shall additionally establish an interactive public map reflecting the adoption of broadband services, separately by estimated or actual downstream data rate and upstream data rates, in a particular region, area, community, street or location. Any such mapping shall provide data separately for residential connections and non-residential connections. This map shall be known as the West Virginia Broadband Adoption Map.
(d) The mapping provided for in this section may be based on information collected or received by the Broadband Council and Office of Broadband, including, but not limited to, data collected from:
(1) State and federal agencies or entities that collect data on broadband services;
(2) Industry provided information;
(3) Consumer data provided to the Broadband Council or Office of Broadband pursuant to §31G-1A-6 and §31G-1A-9 of this code; and
(4) Other data sources procured by or provided to the Office of Broadband or the Broadband Council.
(e) Any entity that has received or hereinafter receives state or federal moneys, and which has used those moneys to install infrastructure used for broadband services, shall furnish detailed information concerning the location, type, and extent of such infrastructure to the Office of Broadband for use in mapping and shall furnish the location, type, and prices of any broadband services subscribed to by residential (and separately non-residential) consumers as a result of the installed infrastructure.
(f) The mapping and designations provided for under this section may be revised on a continuing basis by the office as warranted by the data and information provided.
(g) In addition to the provisions of §31G-1A-13 of this code, the mapping of broadband services may exclude from public accessibility and availability:
(1) The location or identity of any critical infrastructure used by public or private entities in furtherance of their internet services;
(2) Personal name and personal IP addresses connected with particular data rates; and
(3) Information designated as confidential for public security reasons by either state or federal homeland security agencies: Provided, That it shall be duty of the public and private entities to make the Office of Broadband aware of such confidential designation: Provided, however, That unless the Office of Broadband determines good cause exists, the actual or estimated upstream and downstream data rates of an area or region of the state shall not be excluded from public or private availability.
(h) All executive agencies which have permitting and/or regulatory approval authority over any project permitted or reviewed and approved pursuant to §17-2E-3 of this code shall cooperate with and provide all necessary information to the Office of Broadband to determine the feasibility and federal allowability of creating Advanced Regulatory Environment Analysis (AREA) maps. AREA maps will pre-survey likely routes for middle-mile infrastructure so all relevant information can be included in a centralized GIS mapping system to be maintained by the Office of Broadband for utilization by the private sector when extending new fiber infrastructure pursuant to §17-2E-1 et seq. of this code. AREA mapping shall also include, but is not limited to, any areas already granted Finding of No Significant Impact (“FONSI”), categorical exclusions (“CATEX”), areas prior approved by the West Virginia State Historic Preservation Office (“SHPO”), and all West Virginia Division of Highways mapping for permits that include installation of infrastructure.
(i) If in analyzing the consumer-supplied speed data for an area of two square miles or more, the Office of Broadband finds that speeds supplied by a provider are less than 80% of the lowest speed tier advertised by the provider in more than 40% of the tests in that area in a calendar year, then the Office of Broadband shall notify the Consumer Protection Division of the Attorney General’s Office, and shall transmit such records of any relevant speed tests in their custody to the Consumer Protection Division of the Attorney General’s Office.
§31G-1A-4. Collection of data.
(a) In order to ascertain, categorize, analyze, map, and update the status of broadband in the state, as well as to enable the Office of Broadband to make informed policy and legislative recommendations, the Office of Broadband may establish a voluntary data collection program. The program may include voluntarily submitted data from internet service providers, including any home or region data rate meters utilized by the provider. The program may also utilize and collect voluntarily submitted data rate information submitted by any person reflecting the person’s personal data rate at a particular IP address. This personal data rate may be based upon a web-based test or analysis program.
(b) Any and all data collected by the Office of Broadband shall not be deemed public information and is not subject to public release or availability pursuant to §29B-1-1 et seq. of this code.
(c) Any data collection program established by the Office of Broadband shall:
(1) Make clear to those providers or persons submitting information that the data rate speed may become public, including specific reference to the person’s physical address;
(2) Make clear this is a voluntary data collection program and that submission of information shall be deemed consent to use and make public such data rate information; and
(3) Not include any person’s personal web history or search information, or otherwise publicly identify the person’s name in connection with an IP address or physical address.
(d) The Office of Broadband may establish guidelines and additional rules governing a data collection program through the legislative rulemaking pursuant to the provisions of §29A-3-1 et seq. of this code.
§31G-1A-5. Protection of proprietary business information.
(a) Broadband deployment information provided to the Office of Broadband or its consultants and other agents, including, but not limited to, physical plant locations, subscriber levels, and market penetration data, constitutes proprietary business information and, along with any other information that constitutes trade secrets, shall be exempt from disclosure under the provisions of §29B-1-1 et seq. of this code: Provided, That the information is identified as or would reasonably be contemplated to be confidential information when submitted to the Office of Broadband.
(b) Trade secrets or proprietary business information obtained by the council or the Office of Broadband from broadband providers and other persons or entities shall be secured and safeguarded by the state. Such information or data shall not be disclosed to the public or to any firm, individual, or agency other than officials or authorized persons of the state.
(c) The official charged with securing and safeguarding trade secrets and proprietary data for the Office of Broadband is the Secretary of Economic Development, who is authorized to establish and administer appropriate security measures.
§31G-1A-6. Legislative rule-making authority.
In order to implement and carry out the intent of this article, the Secretary of the Department of Economic Development may propose rules for legislative approval pursuant to the provisions of §29A-3-1 et seq. of this code.
ARTICLE 3. CONDUIT INSTALLATION; MICROTRENCHING.
§31G-3-3. Conduit installation or fiber installation by counites, municipalities, and other political subdivisions.
(2) Partner with any of the following entities, or any combination thereof, to install such conduit or communications facilities throughout that political subdivision:
(A) Nonprofit organization;
(B) Cooperative association;
(C) Another county, municipality, or political subdivision;
(D) Private corporations, company, or person; or
(E) Public-private partnership; and
(4) Partner with any of the following entities, or any combination thereof, which operate a network operations center, to operate a fiber network: Provided, That a political subdivision may operate a network for their own use:
(A) Nonprofit organization;
(B) Cooperative association;
(C) Another county, municipality, or political subdivision;
(D) Private corporations, company, or person; or
(E) Public-private partnership.
(a) A broadband operator shall be authorized to construct or operate a broadband system:
(1) Over public rights-of-way; and
(2) Through easements, which are within the area to be served by the broadband system and which have been dedicated for compatible uses.
(b) In installing, operating, and maintaining facilities, the broadband operator shall avoid all unnecessary damage and injury to any trees, structures, and improvements in and along the routes utilized for the system.
(c) The broadband 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 broadband 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 broadband 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 broadband operator in the installation, operation or maintenance of its broadband system.
(d) The use of public highways and other public places shall be subject to:
(1) All applicable state statutes, municipal ordinances and all applicable rules 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;
(3) For state or federal-aid highways, all public welfare rules adopted by the secretary of the Department of Transportation; and
(4) With respect to the use of any public highway that crosses the trackway of any railroad, nothing in this article shall be construed to provide for any greater or any lesser compliance with any safety policy or procedure established by the railroad with respect to the construction of utility crossings across the railroad’s trackway that is applicable to any other similarly situated utility, whether utilizing aerial or buried lines.
(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 broadband system; and
(2) That the owner of the property is justly compensated by the broadband operator for any damages caused by the installation, construction, operation, or removal of facilities by the broadband operator.
(f) An “easement dedicated for compatible uses” is a public or private easement for electric, gas, telephone, or other utility transmission
ARTICLE 4. MAKE-READY POLE ACCESS.
As used in this article, the following terms are defined as follows:
(1) “Applicable codes” means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization, including, but not limited to, the National Electrical Safety Code, or any local amendments to those codes: Provided, That notwithstanding any other provisions of said applicable codes, the Code of West Virginia, or the West Virginia Code of State Rules, variances for the installation and maintenance of broadband service infrastructure on utility poles shall be permitted if these are agreed upon between infrastructure owners.
(1) (2) “Attacher” means any person,
corporation, or other entity, or the agents or contractors of such seeking to
permanently or temporarily fasten or affix any type of equipment, antenna, line,
or facility of any kind to a utility pole in the right of way or its adjacent
ground space. (2) (3) “Attachment Application” means the
application made by an Attacher to a Pole Owner for attachment of equipment,
antenna, line or facility of any kind to a utility pole. It shall include:
(A) Proof of insurance; or
(B) An indemnification agreement prepared by the Pole Owner.
(3) (4) “Make Ready Costs” means the costs
incurred by an Attacher associated with the transfer of the facilities,
antenna, lines, or equipment of a Pre-Existing Third Party User,
undertaken by an Attacher to enable attachment to the utility pole or similar
structure. Make-Ready Costs that are to be paid by an Attacher include, without
limitation, all costs and expenses to relocate or alter the attachments or
facilities of any Pre-Existing Third Party User as may be necessary to
accommodate an Attacher’s attachment. (4) (5) “Pole Owner” means a person,
corporation or entity having ownership of a pole or similar structure in the
right of way to which utilities, including without limitation, electric and
communications facilities, are located or may be located whether such ownership
is in fee simple or by franchise. (5) (6) “Pre-Existing Third Party User”
means the owner of any currently operating facilities, antenna, lines or
equipment on a pole or its adjacent ground space in the right of way.
§31G-4-2. Attachment to third party facilities.
(a) Upon approval of an Attachment Application, an Attacher may relocate or alter the attachments or facilities of any Pre-Existing Third Party User as may be necessary to accommodate an Attacher’s attachment using Pole Owner approved contractors; provided, however, that an Attacher will not effectuate a relocation or alteration of a Pre-Existing Third Party User’s facilities that causes or would reasonably be expected to cause a customer outage without first providing 45 days prior written notice to the Pre-Existing Third Party User, in order to permit the Pre-Existing Third Party User to relocate its facilities on its own.
(b) In the event the Pre-Existing Third Party Users of
such other facilities fail to transfer or rearrange their facilities within
45 days from receipt of notice of relocation or alteration of a
Pre-Existing Third Party User’s facilities that causes or would reasonably be
expected to cause a customer outage, an Attacher may undertake such work.
(c) Within 30 days of the completion of any relocation or alteration, an Attacher shall send notice of the move and as-built reports to the Pre-Existing Third Party User and the owner of all poles or other structures on which such relocations or alterations were made. The as-built reports shall include a unique field label identifier, and an address or coordinates.
(d) Upon receipt of the as-built reports, the Pre-Existing Third Party User and pole or structure owner(s) may conduct an inspection within 14 days at an Attacher’s expense. An Attacher shall pay the actual, reasonable, and documented expenses incurred by the Pre-Existing Third Party User and pole or structure owner for the inspection. If any such relocation or alteration results in the facilities of the Pre-Existing Third Party User on the pole or other structure failing to conform with the applicable safety Pole Owner’s standards, the Pre-Existing Third Party User shall, within seven days of the inspection, notify an Attacher of such failure to conform.
(e) In a notice, the Pre-Existing Third Party User may elect to either:
(1) Perform the correction itself and bill the Attacher for the actual, reasonable and documented costs of the correction, or
(2) Instruct the Attacher to correct such conditions at Attacher’s expense. Any post-inspection corrections performed by the Attacher must be completed within 30 days of such notification.
(f) As a condition of exercising the ability to relocate, rearrange, or alter a Pre-Existing Third Party User’s facilities pursuant to this section, an Attacher shall indemnify, defend and hold harmless the owner or owners of all poles or other structures on which such relocation, rearrangement or alteration takes place, the affiliates of such owner or owners, and the officers, directors and employees of such owner or owners and their affiliates, each being deemed an Indemnitee, from and against all third party damage, loss, claim, demand, suit, liability, penalty or forfeiture of every kind and nature, including, but not limited to, costs and expenses of defending against the same, payment of any settlement or judgment therefor and reasonable attorney’s fees, that are actually and reasonably incurred by an Indemnitee, by reason of any claim by an affected Pre-Existing Third Party User or any person or entity claiming through such Pre-Existing Third Party User arising from such relocation, rearrangement or alteration.
(g) All work performed must be in accordance with
applicable codes, as defined in section one of this article, including, but not
limited to, the National Electrical Safety Code
and other generally accepted
safety codes: Provided, That the variances to applicable codes
and to private agreements as set forth in §31G-6-1 of this code shall apply to
(h) In the event an ILEC accepts payment for make-ready work, and fails to perform that work within 45 days, the ILEC which has been paid and which has failed to perform the work, shall immediately return and refund the moneys paid for that work which was not completed. Failure to return those funds within 14 calendar days shall be cause for a fine, payable to the Public Service Commission, equal to the amount of the payment and a cause of action in circuit court for return of the payment and is subject to treble damages, reasonable attorney’s fees, and any applicable court costs. Good-cause and good-faith efforts to have performed the work shall be a defense against the imposition of any fine: Provided, That the provisions of this subsection shall not apply to any make-ready work where a pole replacement is necessary.
(a) The Public Service Commission shall possess and exercise regulatory jurisdiction over the provisions of this article. The commission shall administer and adjudicate disputes relating to the issues and procedures provided for under this article.
(b) The commission shall adopt the rates, terms, and conditions of access to and use of poles, ducts, conduits, and rights-of-way as provided in 47 U.S.C. § 224 and 47 C.F.R. § 1.1401 – 1.1415, inclusive, of the dispute resolution process incorporated by reference in those regulations and any subsequent modifications or additions to the provisions of the United States Code or Code of Federal Regulations provisions referenced herein.
(c) The commission shall certify to the Federal Communications Commission that this state, as evidenced by the enactment of this article, hereby exercises jurisdiction over the regulation of pole attachments. The certification shall include notice that the State of West Virginia hereby:
(1) Regulates the rates, terms, and conditions related to pole attachments; and
(2) In so regulating such rates, terms, and conditions, the state has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the services.
(d) (1) Notwithstanding subsection (b), the commission shall promulgate rules to address abandoned cable, conductor, and related facilities attached to utility poles. The rules shall include provisions that:
(A) Provide for the pole owner to fully recover from the owner of the attachment the costs incurred by the pole owner for the removal and disposal of abandoned cable, conductors, and related facilities;
(B) Address situations where the pole owner is unable to receive full recovery of its removal and disposal costs from the owner of the attachment by instead receiving recovery of its net unrecovered costs from its jurisdictional customers, including other Attachers, in such manner as the commission determines is just and reasonable; and
(C) Allow the pole owner to book or defer these net costs on its accounting books and request recovery to the commission outside of a base rate case proceeding through a surcharge or other rate recovery mechanism.
(2) Any pole owner, after making reasonable efforts to require the attachment owner to remove abandoned facilities, that proceeds to remove what the pole owner reasonably believes is abandoned cable, conductor, and related facilities, shall be released and held harmless from liability from claims or any related losses claimed by the Attacher or others for the pole owner’s removal work, including any loss of property value, potential business value, salvage value, or any other value of such cable, conductor, and related facilities.
(e) Notwithstanding subsection (b), the commission shall promulgate rules to govern the timely transfer of facilities from an old pole to a new pole and the removal of utility poles that have had electric facilities moved to new poles but continue to have other facilities attached in the telecommunications space on the old existing poles. Should the attached facilities not be transferred in a timely manner from the old pole to the new pole by the owner of the attachments, as determined by the commission, the rules shall address this matter and include the right and mechanism of the pole owner itself to transfer the facilities to the new pole, to remove the old pole, and to recover its costs fully and timely from the owner of the facilities transferred. Any pole owner who transfers facilities from an old pole to a new pole, after reasonable due diligence, shall be released and held harmless from liability for its transfer work, except for acts of negligence or willful misconduct.
ARTICLE 6. PRE-EMPTION OF CONFLICTING LOCAL ORDINANCES AND PRIVATE RESTRICTIONS
§31G-6-1. Pre-emption in favor of broadband services; construction of language in agreements.
(a) Notwithstanding any other provision of the West Virginia Code or the West Virginia Code of State Rules to the contrary, any ordinance of any political subdivision relating to broadband service is hereby pre-empted to the extent necessary in favor of such broadband installation.
(b) No corporate policy, organizational policy, institutional policy, agreement, contract, or other like document, including the rules and regulations of any Home Owners Association, or any similar entity or organization, promulgated or made effective after the effective date of this section, may regulate or prevent the exterior installation of antennas and equipment necessary to or typically utilized for broadband deployment and the terms of any such document shall be strictly construed in favor of encouraging and assisting broadband installation and deployment.
§31G-6-2. Pre-emption in favor of broadband service in pole attachments; construction of language in pole attachment agreements.
(a) Notwithstanding any other provision of the West Virginia Code or the West Virginia Code of State Rules to the contrary, any ordinance of any political subdivision regarding pole attachment spacing, positioning, or order by or between any Investor Owned Utility (“IOU”) and any Incumbent Local Exchange Carrier (“ILEC”) and/or Competitive Local Exchange Carrier (“CLEC”) which would seek to provide broadband service, is hereby pre-empted to the extent necessary in favor of such broadband installation or deployment.
(b) Any corporate policy, individual agreement, organizational policy, contract, or like document relating to pole attachment spacing, positioning, or order by or between any Investor Owned Utility (“IOU”) and any Incumbent Local Exchange Carrier (“ILEC”) and/or Competitive Local Exchange Carrier (“CLEC”) shall be strictly construed in favor of encouraging and assisting broadband installation and deployment.