HB4447 SFA BOSO 3-9 #1
Senator Boso moved to amend the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 2E. “DIG ONCE” POLICY.
In this article, unless the context otherwise requires:
(1) “Broadband conduit” or “conduit” means a conduit, innerduct or microduct for fiber optic cables that support facilities for broadband service.
(2) “Broadband service” has the same meaning as defined in §31G-1-2 of this code.
(3) “Cost-based rate” means a lease rate that is only comprised of direct and actual associated indirect costs of obtaining and maintaining the associated right-of-way and broadband conduit and must be equitably allocated among users of the associated right-of-way, broadband conduit and innerduct or microduct.
(4) “Council” means the Broadband Enhancement Council.
(5) “Covered highway construction project” or “project” means:
(A) A project to construct a new highway or bridge or to construct or relocate an additional lane or shoulder for an existing highway that is commenced after the effective date of this section and that receives funding from state or federal monies; or
(B) Any other project undertaken by the Division of Highways that opens, bores, or trenches alongside any state-owned infrastructure or right-of-way, including, but not limited to, surface mounting on bridges, overpasses, and other facilities where below ground placement is impossible or impractical.
(6) “Division” means the Division of Highways.
(7) “Longitudinal access” means access to or the use of any part of a right-of-way that extends generally parallel to the right-of-way.
(8) “Permit” means an encroachment permit issued by the Commissioner of the Division of Highways under the authority of §17-4-8 or §17-16-6 of this Code, and pursuant to the “Accommodation of Utilities On Highway Right Of Way and Adjustment and Relocation Of Utility Facilities On Highway Projects Policy”, or the equivalent policy, as currently enforced by the Division of Highways, that specifies the requirements and conditions for performing work in a right-of-way.
(9) “Telecommunications carrier” means an entity that provides for the sale or resale of wholesale or retail broadband services in this state.
(10) “Right-of-way” means land, property, or any interest therein acquired or controlled by the West Virginia Division of Highways for transportation facilities or other transportation purposes or specifically acquired for utility accommodation.
(11) “Available conduit” means unused vacant conduit.
(12) “Statewide telecommunications purposes” means the development of the statewide network that meets the telecommunications needs of state agencies or serves another public purpose.
(13) “Telecommunications facility” means any cable, line, fiber, wire, conduit, innerduct, access manhole, handhole, tower, hut, pedestal, pole, box, transmitting equipment, receiving equipment, power equipment or other equipment, system or device that is used to transmit, receive, produce or distribute a signal for telecommunications purposes via wireline, electronic or optical means.
(14) “Telecommunications carrier” means a telecommunications carrier:
(A) As determined by the Public Service Commission of West Virginia; or
(B) That meets the definition of telecommunications carrier with respect to the Federal Communications Commission, as contained in 47 U.S.C. §153.
(15) “Utility facility” has the meaning ascribed to it in§17-2A-17a of this Code.
(16) “Vacant conduit” means conduit which has not had fiber optic cable installed.
(17) “Wireless access” means access to and use of a right-of-way for the purpose of constructing, installing, maintaining, using, or operating telecommunications facilities for wireless telecommunications.
§17-2E-2. Broadband conduit installation in rights of way; permits; agreements; compensation; valuation of compensation.
(a) Before obtaining a permit for the construction or installation of a telecommunications facility in a right-of-way, a telecommunications carrier must enter into an agreement with the Division consistent with the requirements of this article.
(b) Before granting permitted longitudinal access to a right-of-way, the Division must:
(1) enter into an agreement with a telecommunications carrier that is competitively neutral and nondiscriminatory as to other telecommunications carriers, and
(2) issue a permit granting such access, consistent with the requirements of this article and compliant 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. Such an agreement must be approved by the Commissioner of the Division of Highways 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 by some other provision of this code, in any agreement entered into consistent with the requirements of this article, the Division may not grant a property interest in a right-of-way.
(d) A telecommunications carrier shall compensate the Division for use of available conduit or related facilities of the Division as part of any longitudinal access granted to a right-of-way pursuant to this section. Such compensation must be, without limitation:
(1) Fair market value;
(2) Competitively neutral;
(4) Open to public inspection;
(5) Calculated in such manner as:
(A) to promote access by multiple telecommunications carriers; and
(B) 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
(C) Once, calculated, set at an amount that encourages the deployment of digital infrastructure within this State: Provided, The division may consider the value and benefits expanding broadband service to the unserved and underserved areas of the state has on economic development and expansion of digital education and telemedical opportunities in the area;
(6) Such compensation is to be paid as in either monetary or in monetary compensation, or with in-kind compensation, or a combination of monetary compensation and in-kind compensation; and all monetary compensation is to be paid according to the terms of the agreement.
§17-2E-3. Monetary and in-kind compensation and valuation.
(a) All monetary compensation collected by the Division pursuant to the provisions of this article must be deposited in the State Road Fund.
(b) In-kind compensation paid to the Division, as more under an agreement entered into pursuant to this article may include, without limitation:
(1) Conduit or excess conduit;
(3) Dark fiber;
(4) Access points;
(5) Telecommunications equipment or services;
(6) Bandwidth; and
(7) Other telecommunications facilities as a component of the present value of the trenching.
(c). For the purpose of determining the amount of compensation a telecommunications carrier must pay the Division for the use of available conduit or excess conduit or related facilities of the Division as part of any longitudinal access granted to a right-of-way pursuant to this section, the Division shall:
(1) Conduct an analysis once every 5 years, in accordance with the regulations of the Division of Highways, to determine the fair market value of a right-of-way to which access has been granted pursuant to this section; and
(2) If compensation is paid in-kind, in consultation with the Council, determine the value of any such in-kind compensation based on the incremental costs to the Division for the installation of conduit and related facilities, or the costs to the telecommunications carrier for the installation of conduit and related facilities, as applicable; and
(3) The value of in-kind compensation or a combination of monetary compensation and in-kind compensation must be equal to or greater than the amount of monetary compensation that the Division would charge if the compensation were paid solely with monetary compensation.
(4) The Division shall value any in-kind compensation as follows:
(A) Electronic equipment, conduit, fiber and other telecommunications hardware and software must be valued on a present value basis at the estimated, reasonable cost to the telecommunications carrier for procuring and installing such hardware and software.
(B) Excess conduit, fiber and other related facilities must be valued on a present value basis of the estimated, reasonable cost to the Division for procuring and installing such facilities.
(C) The present value of the estimated, reasonable cost to the telecommunications carrier of joint trenching for placing conduit, excess conduit, fiber and other related facilities for the telecommunications carrier and the Division must be proportionately allocated to the Division pursuant to this paragraph and must equal some proportion of the total estimated, reasonable cost of the trenching work. The Council and the Commissioner of the Division of Highways shall jointly promulgate rules to calculate and determine the valuation of this allocation, as hereinafter provided for in this article.
(D) The present value of the estimated, reasonable cost to a telecommunications carrier for providing any other telecommunications facility which is shared jointly by the telecommunications carrier and the Division must be proportionately allocated to the Division as a component of the present value of the in-kind compensation. The Division shall determine the proportion to be allocated to the Division pursuant to this paragraph based on the percentage of use or benefit to which each party is entitled under the agreement entered into pursuant to this act.
(E) The Division shall determine the present value of warranties of equipment, conduit, fiber or other components and software, maintenance covenants and operating covenants, based on the reasonable, estimated cost of purchasing such warranties and covenants from manufacturers or other third parties.
(F) The total present value of the in-kind compensation is the sum of the present values determined in paragraphs (A) to (E) of this subdivision, inclusive.
(G) Any in-kind compensation received by the Division pursuant to this act must be used exclusively for statewide telecommunications purposes and may not be sold or leased in competition with telecommunications carriers or Internet service telecommunications carriers. Fair market value valuation of facilities owned by either the Division or a telecommunications carrier offered as part of in-kind compensation must be determined by the Division: Provided, In-kind compensation paid to the Division of Highways may be disposed of if both of the following conditions are met:
(i) The telecommunications facility received as in-kind payment has not been used within 10 years of it installation; and
(ii) The Commissioner of the Division of Highways determines that the division does not have an immediately foreseeable need for the telecommunications facility.
(H) Upon determining that it is appropriate to dispose of the telecommunications facility, the division shall determine its current fair market value. The division shall offer the provider or providers who made the in-kind payment the option to purchase any telecommunications facility obtained from such provider. If the provider or providers do not purchase the telecommunications facility, it shall be offered for public auction in the same manner as the division auctions excess rights-of-way.
(I) In determining the value of any in-kind compensation, the Division shall also consider any valuation or cost information provided by the telecommunications carrier.
§17-2E-4. Highway safety and existing highway policies.
(a) The Division shall not grant any longitudinal access to a right-of-way if such access would compromise the safe, efficient and convenient use of any road, route, highway or interstate in this State for the traveling public.
(b) Notwithstanding any other provision of law, the requirements set forth in this article, including any longitudinal access to a right-of-way granted by the Division, do not abrogate, limit, supersede or otherwise affect
(1) 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.
(2) access granted or authorized pursuant to the Division’s “Accommodation of Utilities On Highway Right Of Way and Adjustment and Relocation Of Utility Facilities On Highway Projects Policy: June 2007” or equivalent policy.
(c) The Division 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 to the right-of-way.
(d) If the Division authorizes longitudinal 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 telecommunications carriers.
(e) The placement, installation, maintenance, repair, use, operation, replacement and removal of telecommunications facilities with longitudinal access to a right-of-way or that use or access conduit or related facilities of the Division must be accommodated only when in compliance with all requirements of this Code and all applicable Division of Highways rules, policies and guidelines.
(f) Access to a right-of-way must be administered in compliance with the Telecommunications Act of 1996, 47 U.S.C. §151, et seq., as amended.
§17-2E-5. Telecommunications carrier initiated construction.
(a) (1) Before obtaining a permit for the construction or installation of a telecommunications facility in a right-of-way, the telecommunications carrier must notify all other active telecommunications carriers of the permit application by submitting a notice of application to the Council.
(2) As provided in §17-2E-6 of this Code, other telecommunications carriers shall have 60 days to notify the applicant telecommunications carrier of their desire to share the proposed facility.
(b) If other telecommunications carriers wish to join the construction, the telecommunications carrier applying for the permit shall act as the lead company and shall not be required to alter their preferred construction type or method to accommodate another carrier.
(c) The Council and the Commissioner of the Division of Highways shall jointly promulgate Rules governing the relationship between the telecommunications carriers, as hereinafter provided in this article.
(d) In exchange for the right of way and permitting costs, the Division shall receive compensation consistent with the provisions as set forth in §17-2E-2 and §17-2E-3 of this Code.
§17-2E-6. Joint use; multiple telecommunications carriers in a single trench.
(a) (1) The Division shall provide for the proportionate sharing of costs between the Division and a telecommunications carrier for joint trenching or trench sharing based on the amount of conduit innerduct space or excess conduit that is authorized by agreement entered into pursuant to section two of this article.
(2) Upon application for a permit, the telecommunications carrier will notify, by email, the Council and, by email, all other telecommunications carriers on record with the Council. Other telecommunications carriers have sixty days to notify the applicant if they wish to share the applicant’s trench. This requirement extends to all underground construction technologies, including, but not limited to, directional boring.
(3) If a competing telecommunications carrier expresses interest in participating in the project, an agreement between the two or more telecommunications carriers will be executed by those entities, outlining the responsibilities and financial obligations of each, with respect to the installation within the right-of-way. A copy of the executed agreement shall be provided to the Division of Highways.
(4) If two or more telecommunications carriers are required to share a single trench, each telecommunications 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, including, but not limited to, directional boring.
(b) (1) If the Division enters into an agreement with two or more telecommunications carriers, a consortium of such carriers, or other entity, whose members, partners ,or other participants are two or more telecommunications carriers, or, if the Division requires two or more telecommunications carriers to share a single trench, the agreements entered into pursuant to this act must require that the telecommunications carriers share the obligation of compensating the Division 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.
(2) The provisions of subdivision (1) of this subsection do not prevent the Division from requiring every participating telecommunications carrier from bearing joint and several liability for the obligations owed to the Division under the agreements.
(3) Any agreement requiring two or more telecommunications carriers to share the obligation of compensating the Division must provide the Division the right to review and audit the records and contracts of and among the participating telecommunications carriers to ensure compliance with subdivision (1) of this subsection.
§17-2E-7. Use of available conduit.
(a) (1) The Division may offer a telecommunications carrier use of and access to any of its available conduit and related facilities if the Division:
(A) Determines the available conduit and related facilities are not and will not be needed for highway purposes;
(B) Receives fair compensation for the use of and access to the available conduit and related facilities; and
(C) Offers such use and access in a competitively neutral and nondiscriminatory manner as to all similarly situated telecommunications carriers.
(2) The Division shall establish rates of compensation for the use of and access to its available conduit to ensure that the Division receives fair compensation for the value of its underground installations of conduit and related facilities. The compensation must be fair market value to both the Division and the telecommunications carrier, and charged in a competitively neutral and nondiscriminatory manner to all similarly situated telecommunications carriers.
(3) Any compensation charged pursuant to this section must be set forth in an agreement entered into between the Division and the telecommunications carrier.
(b) The Division shall:
(1) Determine the annual compensation to be paid by each telecommunications carrier for use of its conduit and related facilities based on the present value of the estimated, reasonable cost to the Division of trenching to place conduit, fiber and other related facilities; and
(2) Conduct an analysis every 5 years to determine if there are any changes in the value of its available conduit and related facilities. If the Division determines that the value of its available conduit or related facilities has changed, the Division must apply the new values to each agreement executed thereafter.
(3) The Division may accept in-kind compensation for the use of and access to its available conduit and related facilities in accordance with the valuation procedures as set forth in §17-2E-3 of this Code.
§17-2E-8. Broadband conduit installation in covered highway construction projects.
(a) (1) Notwithstanding any other provision of this section, the Division shall inform the Council 90 days prior to issuing a request for proposal or a request for qualifications for a covered highway construction project, and provide to the Council a description of the project adequate to make a determination by the Council of the necessity to include broadband conduit in the project and to determine the specifications of the broadband conduit to be included in the project. Upon review of the proposed project, the Council shall issue a determination as to whether or not the covered highway construction project represents an effective and efficient opportunity for the expansion of broadband service. The recommendation may include installation of the broadband conduit throughout the entire project, or, only in portions of the project.
(2) (A) If the Council determines the covered highway construction project represents an effective and efficient opportunity for the expansion of broadband service; and
(B) If no telecommunications carrier has applied under the provisions of this article to install conduit in the right of way of that covered highway construction project; then
(C) The Division shall install vacant broadband conduit in accordance with this article as part of that covered highway construction project. All work performed must be in accordance with the National Electrical Safety Code and other generally accepted safety codes. All details of such installation, including the depth of installation of conduit, the size of said conduit, the placement of hand holes and manholes for fiber access, the location and access to pull tape, the interval between access points, and other such considerations are to be in accordance with industry best practices, and as determined by applicable rules jointly promulgated by the Council and the Commissioner of the Division of Highways.
(b) Telecommunications carriers desiring use of this conduit may make use of this vacant conduit upon application to the Division. If the Division approves, it shall then lease the broadband conduit to telecommunications carriers at a cost-based rate and coordinate with telecommunications carriers regarding planning and relocating of broadband conduit and any related telecommunications carrier facilities within the right-of-way at the telecommunications carrier's expense if future highway improvements make the relocations necessary. The Division shall take reasonable steps to ensure market-based, nondiscriminatory pricing, and, may limit telecommunications carrier access to any broadband facilities within the right-of-way for initial installation and infrequent access for maintenance purposes and may take other actions necessary to maintain highway safety
(c) The Division may install broadband conduit without regard to the timing of a related existing construction project, based on a request for and receipt of funding from the Council.
(d) The Division shall not be required to comply with the provisions of this section if a telecommunications carrier has already installed conduit:
(1) as part of the same covered highway construction project; or
(2) on the same right of way prior to the commencement of the covered highway construction project.
§17-2E-9. Infrastructure development.
(a) The Council shall, in collaboration with the Department of Transportation, Division of Highways, and private entities, encourage and coordinate “dig once” efforts for the planning, relocation, installation, or improvement of broadband conduit within a right-of-way in conjunction with any current or planned construction, including, but not limited to, highways and bridges. To the extent necessary, the Council shall, in collaboration with the Department of Transportation and Division of Highways, evaluate engineering and design standards, procedures and criteria for contracts or lease agreements with private entities, and pricing requirements, and provide for allocation of risk, costs, and any revenue generated.
(b) The Council shall, in collaboration with other state departments and agencies the Council considers necessary, develop a strategy to facilitate the timely and efficient deployment of broadband conduit or other broadband facilities on state-owned lands and buildings.
(c) To the extent practicable, the Council shall encourage and assist local units of government to adopt and implement policies similar to those under subsections (a) and (b) of this section for construction or other improvements to county and municipal building projects, and any other right-of-way under the local unit of government's jurisdiction, and to other lands or buildings owned by the local unit of government.
§17-2E-10. Rulemaking authority.
The Broadband Enhancement Council and the Commissioner of the Division of Highways shall jointly promulgate rules pursuant to the provisions of §29A-3-15 of this code and shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code as may be necessary to carry out the purposes of this article, and as may have been specifically delineated within this article.