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Engrossed Version Senate Bill 740 History

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SB740 SUB1 eng
ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 740

(By Senators Unger, Fanning, White, Deem and Facemyer)

____________

[Originating in the Committee on Finance;

reported March 28, 2005.]

_____________


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-4-1, §5B-4-2, §5B-4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9 and §5B-4-10, all relating to conducting an inventory and developing coordinated deployment and operation of technology infrastructure within this state; legislative findings and purpose; definitions; reporting requirements; rule-making authority; exemptions from disclosure of confidential information; creating Joint Legislative Oversight Commission on Transportation and Infrastructure; creating Innovation Center; appointment and qualifications of Chief Officer of Innovation Center; powers and duties of Innovation Center; reporting requirements; appointment and duties of task force; construction of article; and reservation of powers.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5B-4-1, §5B-4-2, §5B- 4-3, §5B-4-4, §5B-4-5, §5B-4-6, §5B-4-7, §5B-4-8, §5B-4-9 and §5B- 4-10, all to read as follows:
ARTICLE 4. ELECTRONIC TELECOMMUNICATION OPEN INFRASTRUCTURE ACT.
§5B-4-1. Legislative findings; Purpose.
(a) This article is known as the Electronic Telecommunication

Open Infrastructure Act and shall be referred to as "ETOPIA".
(b) The Legislature finds and declares that the internet revolution is driving today's economy and that information technology offers increased economic opportunities, higher living standards, more individual choices and wider and more meaningful participation in government and public life. The past decade has brought considerable advancement in digital communications and the way people communicate worldwide. Accordingly, digital communications in general, and the internet in particular, are becoming increasingly important to the efficiency and effectiveness of private and public sector entities. With the advent of the internet and its various commercial, educational, medical and cultural applications, the ability of people in all parts of this state to access the internet has become an important component in the ability of the state and its people and institutions to remain competitive in the information-based global economy. Internet access is a major concern for rural health care. Telemedicine gives health care providers the ability to connect with patients at home and to share data with medical experts in academia and large urban hospitals in this state and country, thereby greatly enhancing the level of health care in these areas. Internet access is also a concern for rural education. Access to the internet will complement the learning experiences of children in rural areas by giving them a window to the world and allowing them to gather data from the information superhighway which would not otherwise be available to them. Moreover, internet access will give rural children planning to attend college a direct connection to academic information provided online by institutions of higher education in this state and throughout this country. The benefits of the internet are useless to people and businesses who are neither connected to nor able to access the information superhighway. Advanced ultra-high capacity network infrastructure will attract investment capital to the cities and towns of West Virginia, in particular those that house our research institutes, universities, colleges and community colleges. Intergovernmental cooperation in public-private partnership is an effective method to approach common development where high technology services are not available and will not be available. Implementing a coordinated approach to advanced infrastructure will connect West Virginia directly to global markets and enable West Virginia to attract and retain high-caliber knowledge workers and bypass other regions of the country in prosperity and economic expansion. Further, another public need is to develop and implement technology infrastructure that supports homeland security and public safety and continuity of government in the event of emergencies. In particular, first responders increasingly require ubiquitous wireless broadband coverage for safety, security and public health applications. The Legislature finds and declares that efficient and comprehensive development of technology infrastructure is linked to the coordinated deployment and operation of information systems, information technology, information equipment and telecommunications systems and that the management, goals and purposes of government are furthered by the completion of an inventory of information systems, information technology, information equipment, telecommunications related services and systems and generally technology infrastructure and linked information systems across government. The Legislature further finds and declares that technology infrastructure is essential to business and economic development within the state. Therefore, it is a purpose of this article to create, as an integral part of the West Virginia Development Office, the Innovation Center with the authority to advise, make recommendations, coordinate research and development efforts throughout the state and build sustainable communities through technology infrastructure. The Legislature further finds technology infrastructure promotes economic development. Technology infrastructure can make distance far less important than it historically has been, entrepreneurs can choose to live in small towns and rural communities and still engage in global data transmission marketplace. Advanced infrastructure can allow products and services developed in our private industry and our research institutes to reach a global marketplace and for capable entrepreneurs, engineers and executives to build business and careers in our state. Advanced infrastructure can also attract new businesses and industries to our state. Advanced, ultra high- capacity infrastructure can also provide services more efficiently, lowering the costs for consumers and providing a wider array of communication, education, health, safety, security, business, government and cultural services. The Legislature finds that advanced technology infrastructure is vital if West Virginia communities are to survive and prosper in the global economy. The Legislature finds that while basic internet services are available in many cities and towns in West Virginia, there are rural areas and communities where broadband services are lacking, and that ultra-high capacity infrastructure required for major economic expansion is not ubiquitous. The Legislature hereby further finds and declares that, despite advances that have been made in technology deployment by private industry, problems of implementation of technology infrastructure so transcends the boundary lines of governmental units that no single unit can plan for the solution of all of these problems without affecting other units of government; that intergovernmental cooperation in public- private partnership is an effective method to approach common development; where advanced services are not available; and that assistance of the State may be needed to attract investment in West Virginia and to make the most effective use of local, state, federal and private resources. It is therefore the purpose of this article to: (1) Ensure that technology infrastructure and related services are provided and provide the widest possible diversity of information and resources to the general public; (2) advance the exercise of rights under the First Amendment of the Constitution of the United States; (3) enhance the development and widespread use of technological advances; (4)achieve the objectives and policies necessary for the orderly growth and development of the state; (5) allow broadband and other advanced services to be provided; (6) enable government to offer or partner with private entities to provide broadband, wireless, ultra-high capacity infrastructure or advanced services; (7) provide information and develop a knowledge base for government entities and private industry to help ensure the success of advanced technology infrastructure ventures; and (8) facilitate intergovernmental cooperation and public-private partnerships to accomplish the purposes of this article where closed markets have failed to serve the people of West Virginia.
§5B-4-2. Definitions.
The following terms, wherever used or referred to in this article, shall have the following meanings unless a different meaning clearly appears from the context:
(a) "Information equipment" includes central processing units, front-end processing units, miniprocessors, microprocessors and related peripheral equipment such as data storage devices, networking equipment, services, routers, document scanners, data entry equipment, terminal controllers, data terminal equipment, computer-based word processing systems other than memory typewriters;
(b) "Information systems" mean computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;
(c) "Information technology" means data processing and data communications hardware, software, services, supplies, personnel, maintenance and training and includes the programs and routines used to employ and control the capabilities of data processing hardware;
(d) "Local government" means any municipality, county, metro or regional government, or entities or affiliates of such entities in the State of West Virginia;
(e) "Person" means an individual, partnership, association, company, trust, organization, or corporation;
(f) "Public body" means a department, division, agency, bureau, board, commission, court in its nonjudicial functions only, council, institution, spending unit, authority or other instrumentality thereof of whatever description of the State of West Virginia, or any county court or tribunal or commission in lieu thereof, or any county board of education, or any incorporated municipality, metro or regional government, or any other political subdivision; and
(g) "Technology infrastructure" means information systems, information technology, information equipment and facilities, equipment, lines, and services designed for or used for the transmission, emission or reception of signs, signals, writings, images or sounds of intelligence of any nature by wire, radio, microwave, or other electromagnetic or optical systems, related hardware, software, and programming, and specifically including, but not limited to, all features, facilities, equipment, systems, functions, programming, and capabilities, and technical support used in providing or related to:
(1) Cable service (as defined in 47 U. S. C. §522(6));
(2) Telecommunications service (as defined in 47 U. S. C. §153(46);
(3) Information service (as defined in 47 U. S. C. §153(20);
(4) Advanced services (as defined in 47 CFR 51.5);
(5) Broadband service; or
(6) Internet Protocol enabled services, however classified by the Federal Communications Commission.
§5B-4-3. Technology Infrastructure needs assessment and inventory; agency and local government cooperation; information gathering; reporting requirements; rule-making authority.

(a) The state encourages the coordinated deployment and operation of technology infrastructure for present and future use. Therefore, it is necessary for the state to determine, and maintain an ongoing, continually updated record of, the nature and extent of its technology infrastructure comprising information systems, information equipment, and information technology, the demands on its technology infrastructure, and those governmental entities which use or desire to use the resources of the technology infrastructure providing information services, media services, advanced services, broadband services, internet, internet protocol enabled services, telecommunications services or similar services or support.
(b) The Secretary of the Department of Administration shall develop systems and processes for maintaining accurate information on the state of the technology infrastructure in the state on an ongoing basis and conduct an infrastructure resources survey of the deployment and operation of technology infrastructure in this state. The Secretary shall determine the form and format of the information submitted, including the use of electronic submissions.
(c) To facilitate the infrastructure resources survey the Secretary of the Department of Administration, in consultation with the Chief Officer of the Innovation Center established in this article, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code. These rules may include: (1) The manner of reporting the information; (2) promulgation of a form or forms for reporting purposes; (3) a means of providing training to individuals responsible for the completion and submission of the information on the proposed form; (4) a means of reporting back to individual participating public bodies, from time to time, at the request of a public body, on findings specific to that body to allow the public body to evaluate independently the information provided; (5) a limitation that the information is to be used solely for the purposes of this article; (6) safeguards to protect the confidential information as provided in section four of this article; (7) methodology for collection of information and the analysis of the information; and (8)protocols for an annual update of the infrastructure resources survey including information collection, analysis and reporting thereof by the Department of Administration.
(d) Every public body shall complete an infrastructure resources survey no later than the first day of October, two thousand five and a survey each year thereafter as provided in rules promulgated pursuant to this section.
(e) The Secretary shall file annually a report with the joint legislative oversight commission on transportation and infrastructure created in section five of this article. The report shall generally advise the joint oversight commission on transportation and infrastructure about the deployment and operation of technology infrastructure in this state and to make recommendations on policy and statutory changes that may be needed. The report shall include the following: (1) A discussion of the connectivity, priorities, and interoperability of the technology infrastructure owned, leased or used by public bodies; (2) a discussion of the technology infrastructure that is owned, leased, operated, or used by the public bodies of the state; (3) a discussion of technology infrastructure as it affects homeland security, public safety and health, systems reliability and providing continuity of government operations; (4) a discussion of the technology infrastructure identifying potential market demand areas where expanded resources may be expected; (5) a discussion of practices or suggestions to coordinate development of infrastructure related to technology infrastructure and the deployment of services between the public bodies through the coordinated delivery of these systems; and (6) any other discussion that may be beneficial in adequately assessing technology infrastructure.
(f) To the extent technology infrastructure information is readily provided by private persons or otherwise available, the Secretary shall utilize and incorporate that data to fulfill the reporting requirements of this section.
(g) The provisions of this section shall be of no force or effect after the thirty-first day of December, two thousand eight.
§5B-4-4. Confidential information; exemption from disclosure.
(a) Information submitted by a public body as part of the survey that may be a trade secret or otherwise confidential shall be identified by that body as confidential information. The public body claiming confidentiality shall provide written justification to the Secretary at the time the information is submitted stating the reasons for confidentiality and why the information should not be released.
(b) In addition to records or documents considered confidential under this code, confidential information means records, reports or information, or a particular portion or any combination or aggregation thereof, that if made public would present a threat to the safety and security of any system or component relating to the technology infrastructure and related systems.
(c) Information designated as confidential and the written justification shall be maintained in a file separate from the general records related to the public body. The confidential information will be exempt from disclosure requirements under this code.
(d) Information designated as confidential may be released to the Department of Administration, its employees and agents when compiling and analyzing the infrastructure resources survey information as necessary to develop the report required by this article. Any individual receiving information designated confidential shall protect the information as confidential.
§5B-4-5. Joint legislative oversight commission on transportation and infrastructure.

The President of the Senate and the Speaker of the House of Delegates shall each designate five members of their respective houses, at least two of whom shall be a member of the minority party, to serve on a joint legislative oversight commission charged with immediate and ongoing oversight of transportation and infrastructure matters, specifically including, but not limited to, the ongoing oversight of the management and coordination of the deployment and operation of infrastructure related to technology. This commission shall be known as the "Joint Legislative Oversight Commission on Transportation and Infrastructure" and shall regularly investigate and monitor all matters relating to transportation and infrastructure.
§5B-4-6. Innovation center; chief officer; appointment and qualifications.

There is hereby created an office within the West Virginia Development Office called the Innovation Center. There shall be a chief officer of the Innovation Center, who shall be appointed by and shall serve at the will and pleasure of the Governor. The chief officer shall have knowledge in the fields of information technology and telecommunications, business development in these fields and an understanding of the special demands upon entrepreneurship, industry, commerce, culture, public-private partnerships and local governments.
§5B-4-7. Powers and duties Innovation Center.
(a) The primary responsibility of the Innovation Center is to foster and support economic development and the advancement and commercialization of new and emerging technologies.
(b) The Innovation Center has the authority and power to provide consulting and additional services, including, but not limited to, evaluation of technology, verification and assessment of market applications, grant administration for any person engaged in public-private collaborations with the West Virginia Development Office pertaining to technology advancement and commercialization activities and research into new areas of economic development relating to technology, technology infrastructure and telecommunications.
(c) The Innovation Center may receive and accept from any public body or person or entity of any nature whatsoever grants to be expended in accomplishing the objectives of this article and to receive and accept from the state appropriations and grants from any public body and from any other source, aid or contributions of either money, property or other things of value to be held, used and applied only for the purposes for which the grants and contributions may be made or collect fees for consulting services rendered to any public body.
(d) The Innovation Center may accept and expend any gift, grant, contribution, bequest, endowment or other money for the purposes of this article and to make a maximum effort to encourage external support for the Center's programs. Any transfer of endowment or other assets to the Center shall be formalized in a memorandum of agreement to assure, at a minimum, that any restrictions governing the future disposition of funds are preserved.
(e) The Secretary of the Department of Commerce may promulgate rules to fulfill the purposes of this section and to carry into effect the purpose and scope of the Innovation Center. Any new rules promulgated by the Secretary shall be promptly submitted to the Joint Commission created in section five of this article. These rules are not subject to the provisions of chapter twenty- nine-a of this code, but shall be filed with the Secretary of State.
§5B-4-8. Need for study; reporting requirements; information gathering; appointment and duties of task force.

(a) The Innovation Center shall enhance well-being, prosperity, economic growth and community development through the ongoing study and research into and development of best known methods regarding the management practices, human factors and cultural changes related to the implementation, operation and utilization of technology, technology infrastructure, and related services. For the purposes of this section, best known methods refers to plans that outline strategies and activities designed to continue, diversify or expand the economic base of the state as a whole, create jobs, develop a highly capable work force, enhance productivity, facilitate business access to capital, including venture capital and capital markets, advertise and market the resources offered by the state with respect to the technology needs of business and industry, facilitate cooperation among state government, entrepreneurship efforts, local governments, public- private partnerships, universities and colleges and leverage funding from sources other than the state, including federal and private sources.
(b) The Chief Officer of the Innovation Center shall serve as the Chairman of the task force required by this section. The Governor shall appoint the remaining members of the task force no later than first day of June, two thousand five, and the remaining members of the task force are to serve at the governor's will and pleasure. The task force is to be comprised of an official or employee of a municipality in which the rapid advancement of technology infrastructure and services could expand economic opportunity, a representative of local government, a representative of a research university with an active role in entrepreneurial and innovating technology development and commercialization, a county commissioner or his or her designee in a county, in which the rapid advancement of technology infrastructure and services could expand economic opportunity, a representative of the Public Service Commission or the staff of the Public Service Commission, the Director of the Consumer Advocate Division of the Public Service Commission, a representative of a nonrural exchange carrier as defined by the rules and regulations of the Federal Communications Commission, a representative of a rural exchange carrier as defined by the rules and regulations of the Federal Communications Commission, a representative of a incumbent local exchange carrier as defined by the rules and regulations of the federal communications commission, a representative of the cable service industry, a provider of advanced services that require ultra-high capacity infrastructure.
(c) The task force shall study whether the best known methods in private industry and public policy to deploy and utilize technology infrastructure in those areas of the state where competitive or advanced services to the state that have proven beneficial in other areas around the world and that reasonably and practically can be deployed in those areas of the state that where the population would most benefit from the services. Upon completion of a study of those best known methods, the Chief Officer shall file an initial, preliminary report and proposed legislation to carry out the discussion and findings of the report with the Joint Legislative Oversight Commission on Transportation and Infrastructure created in section five of this article no later than the first day of November, two thousand five. The report shall include the following: (1) A discussion that outlines the efforts of private industry to date, the efforts and investment that might be expected of private industry in the reasonably foreseeable future, sources of capital for expanded efforts and cost of capital for such investments; (2) a discussion that outlines strategies and activities designed to continue, diversify or expand the resources offered by the state with respect to the technology needs of business, industry and local government in a manner that is practical and affordable, and furthers the economy of the state; (3) a discussion that outlines strategies to facilitate cooperation among state government, local government, entrepreneurship efforts, public-private partnerships, colleges and universities, with respect to the technology needs of business and industry for services that are not available; (4) a discussion of the management and utilization of technology infrastructure identifying potential growth areas where expanded resources may be expected; (5) a discussion of practices or methods to coordinate development and utilization of technology infrastructure and the deployment of technology infrastructure and related technology through the coordinated delivery of these systems in a manner that encourages private investment;
(6) a discussion promoting technology infrastructure system projects through local government and public private partnerships; (7) a discussion promoting ubiquitous and coordinated deployment of technology infrastructure across the state; (8) a discussion regarding tax credits to promote technology infrastructure system projects in the state; (9) a discussion regarding technology infrastructure related to homeland security, and for the purposes of providing continuity of governmental operations in the event of emergencies; (10) a discussion promoting efficient delivery of technological advances and new services throughout the state in order to improve the health, safety, general welfare, and quality of life of all state residents and businesses; (11) a discussion promoting distance learning in the schools of this state; (12) a discussion regarding local government and public-private partnerships to issue bonds for technology infrastructure development; and (13) any other information that may be beneficial in adequately assessing technology available in determining the need for and the preparation of technology infrastructure plans.
(d) The Chief Officer shall, based upon the annual written findings of the task force, report annually to the Joint Oversight Commission on Transportation and Infrastructure to advise the Commission about the deployment and operation of technology infrastructure in this state and to make recommendations on policy and statutory changes that may be needed, in the format and under the criteria outlined in subsection (c) of this section.
(e) In developing its study, the Innovation Center shall consider input from private industry and resources and technical support available through other agencies, both public and private, including, but not limited to, the state college and university systems, the West Virginia Housing Development Fund, the West Virginia Economic Development Authority, the West Virginia Parkways, Economic Development and Tourism Authority, the West Virginia Chamber of Commerce, West Virginia Jobs Investment Trust, venture capital funds of which the State of West Virginia is a limited partner, regional planning and development councils, regional partnership for progress councils and state appropriations.
§5B-4-9. Innovation Center to provide technical and funding assistance for innovation; consulting services; contractual and joint venture agreements.

(a) The Innovation Center may provide assistance, including funding assistance to develop technology infrastructure, and related technology through a matching grant program. The Innovation Center shall establish criteria for awarding matching grants within the limits of funds appropriated by the Legislature for the program or as available from other sources.
(b) The Innovation Center may provide technical assistance, including consulting services for a fee to one or more public bodies pertaining to the development of technology and technology infrastructure.
(c) The Innovation Center is authorized to enter into contractual or joint venture agreements with one or more persons and public bodies pertaining to the development of technology and technology infrastructure provided the agreements may not be considered a debt of the state or a pledge of the credit of the state.
§5B-4-10. Reservations of powers.

Nothing in this article shall be construed to limit the authority of local government, private entities, or public-private partnerships to implement or develop technology infrastructure.
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