Debriefing the 2021 WV Legislative Session – Broadband

By Brian Skinner, Esq.

After months of discussion, the legislature enacted H.B. 2002, creating a statutory framework to support, encourage, and expedite the expansion of broadband throughout the state. The bill, passed the Senate unanimously and the House with just one dissenting vote, was signed by the Governor on April 28, 2021, and becomes effective on May 27, 2021.

The bill expedites permit processes for companies desiring to install fiber broadband along Division of Highways (“Division”) right of ways. It amends the current “dig once” statutes that allow multiple internet service providers to install fiber broadband simultaneously.

Under the new requirements the Division must issue a permit for in-ground construction or installation of a telecommunications facility in Division owned or controlled rights-of-way if –

• It serves a public purpose and
• Is accommodated as a utility pursuant to federal and state law. (§17-2E-3)

In an effort to better use telecommunication facilities, spare conduit or innerduct must be made available for sale or lease to competing telecommunications carriers on a nondiscriminatory basis to other telecommunications providers. The revenues derived from the sale, less any costs associated therewith, will be remitted to the telecommunications carrier that installed the spare conduit or innerduct consistent with all applicable state and federal law and regulations. 

The Division is authorized to enter into agreements and issue permits to allow carriers to use excess telecommunications facilities owned or controlled by the Division. These agreements are subject to the provisions of the Vertical Real Estate Management and Availability Act. (§31G-5-1 et seq.)

The primary focus of the bill is the creation of the Office of Broadband (“Office”) within the Department of Economic Development under the authority of the Secretary of Economic Development. The Office is to be managed by a director, who reports to the Secretary of Economic Development.

The newly created is given broad responsibility to ensure compliance by broadband carriers with the sharing of Division of Highways right of ways. Additionally, the Office has the duty to —

• explore any and all ways to expand access to broadband services, including, but not limited to, middle mile, last mile, and wireless applications;
• 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;
• cooperate and assist in the expansion of electronic instruction and distance education services;
• gather and report data regarding the adoption by broadband services, by speed, and by community, separately for residential and non-residential consumers;
• 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; and
• 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.

As a result of the creation of the Office, the Broadband Enhancement Council (“Council”) will now have an advisory role and will coordinate with the Office to bring broadband service to unserved and underserved areas, as well as to propose statutory changes that may enhance and expand broadband in the state. To that end several of the powers and duties of the Council are moved to the Office such establishing a mapping of broadband services in the state and establish a voluntary data collection program.

In an effort to address quality of service issues, the Office is authorized to coordinate with the Consumer Protection Division of the Office of the Attorney General to provide consumer protections such as —

• Requiring a credit or refund to a broadband service subscriber who suffers an interruption of service for more than 24 continuous hours;
• Prohibiting a broadband operator from denying service, denying access, or otherwise discriminating 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;
• Requiring broadband operators to 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
• Requiring broadband operators to 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.

Broadband deployment information provided to the Office is exempt from the state freedom of information Act. (§31G-1A-5) Information protected from disclosure includes physical plant locations, subscriber levels, and market penetration data.

Counties, municipalities or other political subdivisions are authorized to install or contract with any entity for the installation of conduit, fiber, or broadband facilities throughout that political subdivision. Local governments may also partner with non-profits, cooperatives and other organizations to install such conduit or communications facilities or operate a fiber network.

Broadband operators are authorized to construct or operate a broadband system over public rights-of-ways and through easements, which are within the area to be served by the broadband system and which have been dedicated for compatible uses.

When using an easement, whether a public or private easement for electric, gas, telephone, or other utility transmission, a broadband operator must ensure the safety, functioning, and appearance of the property and the convenience and safety of others and that the owner of the property is justly compensated for any damages caused by the installation, construction, operation, or removal of facilities.

In cases where an Incumbent Local Exchange Carrier or ILEC accepts payment for make-ready work and fails to perform the work within 45 days for persons or corporation seeking to attach equipment to poles owned by another entity, the ILEC must immediately return and refund the moneys paid for that work which was not completed. (§31G-4-2). Failure to return those funds within 14 calendar days shall be cause for a fine, payable to the Public Service Commission (“PSC”), 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. This provision does not apply to any make-ready work where a pole replacement is necessary.

The PSC is required to promulgate rules to address abandoned cable, conductor, and related facilities attached to utility poles. (§31G-4-4) The rules must:

• allow a 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;
• 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 persons attaching equipment to the pole, in such manner as the commission determines is just and reasonable; and
• allow the pole owner to book or defer 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. 

Additionally, the PSC must 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.

A pole owner is given civil immunity, if after making reasonable efforts to require the attachment owner to remove abandoned facilities, he or she proceeds to remove what the pole owner reasonably believes is abandoned cable, conductor, and related facilities. Civil immunity is also authorized for a pole owner who transfers facilities from an old pole to a new pole.

Finally, ordinances enacted by a political subdivision relating to broadband service or 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”), are pre-empted. (§31G-6-1 & 2).

Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.