Senate Bill No. 556
(By Senators Williams, Beach, Cann, Cole, Green, Jenkins, Kirkendoll, Snyder, Sypolt and Stollings)
[Originating in the Committee on Transportation and Infrastructure; reported March 28, 2013.]
A BILL to amend and reenact §31-15C-2, §31-15C-8, §31-15C-9 and §31-15C-10 of the Code of West Virginia, 1931, as amended, all relating to broadband deployment projects; clarifying that the Broadband Deployment Council’s public outreach and education efforts extend beyond unserved areas; revising the council’s guidelines on requests for funding assistance; requiring the council to give priority to funding type 3 unserved areas; requiring projects for broadband service involving the construction of a network to meet the revised definition of “broadband” before being approved; revising the criteria for funding assistance applications; providing that projects to promote demand may be on a regional or statewide basis; revising notice and posting requirements; and defining and redefining certain terms.
Be it enacted by the Legislature of West Virginia:
That §31-15C-2, §31-15C-8, §31-15C-9 and §31-15C-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 15C. Broadband Deployment.
(a) For the purposes of this article,
(1) "Broadband" or "broadband service" means any service providing advanced telecommunications capability with either a minimum downstream data rate or of 6 Mbps and a minimum upstream data rate of at least 200 kilobits per second 1.5 Mbps, that does not require the end-user to dial up a connection that has the capacity to always be on, and for which the transmission speeds are based on regular available bandwidth rates, not sporadic or burstable rates, with a minimum downstream-to-upstream data ratio of 10:1 for services with a downstream data rate of up to five megabits per second, and with a minimum upstream data rate of 500 kilobits per second for services with a downstream data rate of five megabits per second or greater latency suitable for real-time applications and services such as VoIP and video conferencing, and with monthly usage capacity reasonably comparable to that of residential terrestrial fixed broadband offerings in urban areas.
(2) "Broadband deployment project" means either: (A) A a project to provide broadband services to a type 2 and/or type 3 unserved area, as defined in section six of this article; or (B) a project to undertake activities to promote demand for broadband services and broadband applications.
(3) “Broadband demand promotion project” means a statewide or regional project to undertake activities to promote demand for broadband services and broadband applications.
(4) "Downstream data rate" means the transmission speed from the service provider source to the end-user.
(5) “Network” means a collection of computers and network hardware interconnected by communication channels that allow sharing of resources and information and that has the following characteristics: broadband, multi-media, multi-point, multi-rate and economical implementation for a diversity of services. "Network" does not include Local Area Networks, which are networks that connect computers and network hardware inside a single building, but “network” does include Wide Area Networks, which are a collection of computers and network hardware that connect Local Area Networks.
(4) (6) "Upstream data rate" means the transmission speed from the end-user to the service provider source.
(5) (7) "Unserved area" means a community that has no access to broadband service.
(b) The definition of the term “broadband,” the designation of areas that are “unserved”, and the level of service required to qualify for funding of state programs and projects, are based on the Federal Communications Commission’s current definition of broadband, which is stated in terms of the number of Kilobits (Kbps) per second, either upstream or downstream National Telecommunications and Information Administration’s speed tiers. It is the intention of the Legislature that the definition of broadband in this article and the level of service requirements for state funding be promptly updated by future Legislatures to conform with any revisions enacted by Congress or any rule or regulation promulgated by the Federal Communications Commission or other federal agencies involved with deploying and enhancing broadband services.
§31-15C-8. Stimulation of demand through public outreach and education.
In order to implement and carry out the intent of this article, the council may take such actions as it deems necessary or advisable in order to stimulate demand through public outreach and education. in unserved areas. The council shall consider the views, if offered, of affected members of the public, including private industry.
§31-15C-9. Development of guidelines and application for funding assistance; emergency rule-making authority.
(a) In order to implement and carry out the intent of this article in type 2 and type 3 unserved areas, the council shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the council in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop and execute a broadband deployment project in a type 2 or type 3 unserved area. The guidelines shall include the following factors: (1) The cost-effectiveness of the project; (2) the economic development benefits of the project; (3) the availability of alternative sources of funding that could help finance the project, including, but not limited to, private grants or federal funding and the efforts undertaken to obtain such funding; (4) if the project requires the construction of a network, the applicant's ability to operate and maintain such network; (5) the degree to which the project advances statewide broadband access and other state broadband planning goals; (6) if the project involves the construction of a network, the proposed technologies, bandwidths, upstream data rates and downstream data rates; (7) the estimated date the project would commence and be completed; (8) how the proposed project compares to alternative proposals for the same unserved area with regard to the number of people served, the amount of financial assistance sought, and the long-term viability of the proposed project; and (9) any other consideration the council deems pertinent in evaluating requests for funding assistance. The council shall give priority to funding type 3 unserved areas.
(b) Under no circumstances may the council's guidelines allow for the approval of any project for broadband service that does not include a minimum downstream transmission rate of 600 kilobits per second (Kbps) and a minimum downstream-to-upstream ratio of 8.5:1 for services with a downstream rate of up to five megabits per second (Mbps). In those cases where a project's broadband service's downstream rate is five Mbps or greater, the council's guidelines must require a minimum upstream data rate of 588 Kbps and allow information applications and market demands to dictate acceptable downstream-to-upstream data ratios involving the construction of a network that does not meet, at a minimum, the current definition of broadband in section two of this article.
(c) The council shall create an application form that shall be used by all project sponsors requesting funding assistance from the council to plan, acquire, construct, improve or otherwise develop and execute broadband deployment projects in type 2 or type 3 unserved areas. The application form shall contain all advise applicants of information required by all state agencies that will be required to issue permits and certificates regarding the project. The application form shall require the project sponsor to set forth the proposed location of the project; if the project involves the construction of a network, the type(s) of unserved area(s) the project proposes to address,; the estimated total cost of the project; the amount of funding assistance required and the specific uses of the funding; other sources of funding available or potentially available for the project; information demonstrating the need for the project; that the proposed funding of the project is the most economically feasible and viable alternative to completing the project; and such other information as the council considers necessary.
§31-15C-10. Requirements for project funding assistance; review of project application by council; competitive applications.
(a) Once the council has categorized unserved areas pursuant to section six of this article, At a time and place determined by the council, project sponsors may submit applications for funding assistance. for projects in those unserved areas. Upon receiving its first completed application for a categorized unserved area, the council shall post notice of such application with the Secretary of State Projects involving the construction of a network may be submitted for unserved areas categorized by the council pursuant to section six of this article. Projects to promote demand may be submitted on a statewide or regional basis. If more than one completed application is received for the same project area, the council shall post notice with the Secretary of State of the first completed application received for that project area. The notice shall be published in the State Register for sixty days so as to allow for competing applications to be submitted to the council. Within thirty days of the close of the aforementioned sixty-day notice period, the council shall review all applications timely received during the sixty-day period and either: (i) Approve funding for one or more projects after determining that the funding would constitute an appropriate investment of public funds; or (ii) if the council determines that the application does not contain all of the required information or otherwise is incomplete, or that a proposed project is not eligible for funding assistance, or that the proposed project is otherwise not an appropriate or prudent investment of state funds, the council shall deny the project funding request. Prior to approving or denying any funding request, the council may seek the advice of any expert consultant retained pursuant to section seven of this article, but the council is not bound by that advice. The council shall also consider the views, if offered, of affected members of the public, including private industry.
(b) To apply for or receive any funding assistance for a broadband deployment project from the council pursuant to subsection (a) of this section, the project sponsor seeking the funding assistance shall submit a completed application to the council on the form prepared for such purpose by the council pursuant to section nine of this article.
(c) In reviewing each application, the council may use the engineering, financial and technical expertise of outside consultants in addition to the respective staffs of the government agencies and private-sector entities represented on the council or other government agencies.
(d) Notwithstanding any provision of article fifteen-a, chapter thirty-one or any other provision of this code, broadband deployment project proposals submitted to the council for its consideration pursuant to this article and the council's decisions with regard to such projects shall not be subject to review by the West Virginia Infrastructure and Jobs Development Council.
NOTE: The purpose of this bill is to clarify that the Broadband Deployment Council’s public outreach and education efforts extend beyond unserved areas. The bill revises the council’s guidelines on requests for funding assistance. The bill requires projects for broadband service involving the construction of a network meet the revised definition of “broadband” before being approved. The bill revises the criteria for funding assistance applications. It provides that the council give priority to funding type 3 unserved areas. The bill provides that projects to promote demand may be on a regional or statewide basis. The bill revises notice and posting requirements. The bill defines and redefines certain terms.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.