Senate Bill No. 489
(By Senators Love, Dempsey, Tomblin (Mr. President),
Bailey,
Helmick, Bowman, Snyder, White, Rowe, Hunter, Prezioso, Ross,
McKenzie, Facemyer, Sprouse, Weeks and Caldwell)
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[Introduced February 11, 2003; referred to the Committee on
Government Organization.]
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A BILL to amend article sixteen-a, chapter seventeen of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto three new sections, designated
sections thirty, thirty-one and thirty-two; and to amend
article two, chapter twenty-four of said code by adding
thereto a new section, designated section eleven-c, all
relating to authorizing the parkways authority to provide
wireless communications coverage; providing legislative
findings to support the authorization; requiring the parkways
authority to obtain a certificate of public convenience and
necessity from the public service commission before
constructing, maintaining or operating any wireless
communication towers; authorizing the parkways authority to
license space to carriers and charge fees; requiring the public service commission to require certificates of public
convenience and necessity for the construction and maintenance
of towers for wireless coverage; and requiring the public
service commission to assist the parkways authority in
preparing applications for public convenience and necessity
and in preparing applications to initiate or increase fees
charged for use of wireless communications towers.
Be it enacted by the Legislature of West Virginia:
That article sixteen-a, chapter seventeen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto three new sections, designated sections
thirty, thirty-one and thirty-two; and that article two, chapter
twenty-four of said code be amended by adding thereto a new
section, designated section eleven-c, all to read as follows:
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 16A. WEST VIRGINIA STATEWIDE PARKWAYS, ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY.
§17-16A-30. Legislative findings on wireless communications
coverage; additional power of the parkways
authority to construct, maintain and operate
communications towers.
(a) The Legislature finds and declares:
(1) That there is a lack of wireless communications coverage
in some areas along parkways of this state and along roadways within seventy-five air miles of the parkways of this state,
despite the best efforts of industry and government;
(2) That this lack of wireless coverage not only
inconveniences tourists and citizens in this state, but also
affects the ability of tourists and citizens to dial "911"
emergency services, and affects economic development efforts in the
state;
(3) That the parkways authority is charged with the oversight
of parkways projects, tourism projects and economic development
projects under this article;
(4) That the parkways authority should have the power to
construct towers at key locations along parkways of this state and
along roadways within seventy-five air miles of the parkways of
this state, on which wireless or other carriers may attach their
communications equipment;
(5) That it is in the public interest to provide for the use
of parkways authority's funds to construct any and all necessary
towers to provide sufficient coverage;
(6) That such funds should be used only to supplement, not to
supplant, efforts of private industry; and
(7) That the construction and operation of such towers should
not adversely affect telecommunications carriers in this state,
including wireless and wire line carriers and that the activities
of the parkways authority should be competitively neutral.
(b) The parkways authority has the power to construct,
maintain and operate towers at locations along parkways of this
state and along roadways within seventy-five air miles of the
parkways of this state, on which wireless or other carriers may
attach their communications equipment. Such tower projects are
hereby expressly declared to be parkways projects, tourism projects
and economic development projects within the meaning of this
article. The parkways authority is expressly authorized to expend
funds on those tower projects consistent with the other provisions
of this article. Expenditures may include the hiring of engineers
or other professionals to assist in the design, planning,
construction, implementation, maintenance and operation of tower
projects. Expenditures may be made, however, only to supplement,
not to supplant, efforts of private industry.
§17-16A-31. Application for certificate of public convenience and
necessity for the public service commission.
The parkways authority may not construct, maintain or operate
any towers under this article, without first obtaining a
certificate of public convenience and necessity form the public
service commission. The parkways authority is expressly authorized
to prepare an application for such a certificate, and to take such
other necessary action to obtain such a certificate. That
application must include a proper showing that the following
conditions exist:
(1) That the construction and operation of the tower or towers
in the project is necessary for the safety of tourists and other
persons using the parkways of this state, or for the economic
development of the state within seventy-five air miles of the
parkways of this state;
(2) That market forces are such that private industry cannot
reasonably be expected to construct towers in the reasonably
foreseeable future for adequate wireless coverage to promote such
safety or economic development;
(3) That, if the tower or towers are constructed, wireless
carriers can reasonably be expected to attach their
telecommunications equipment to each tower, including a written
commitment from at least one wireless carrier per tower to do so;
(4) That the construction, maintenance and operation of the
tower or towers will be competitively neutral and specifically will
not favor wireless carriers over wire line carriers by providing an
unfair subsidy from the state;
(5) That the construction, maintenance and operation of the
tower or towers by the parkways authority will not compete with
private industry; and
(6) That the public interest will otherwise be served by the
construction, maintenance and operation of the tower or towers by
the parkways authority.
§17-16A-32. Operation of towers; licenses.
The parkways authority is authorized to license space to
wireless or other carriers on towers constructed pursuant to its
authority under this article. The parkways authority shall grant
reasonable and nondiscriminatory access to all carriers to attach
equipment to or otherwise utilize the towers. The parkways
authority may charge fees for access to or attachment on the
towers, but the fees initially may not exceed the reasonable and
actual additional costs incurred by the parkways authority in
supervising the attachments to the towers, as determined and
approved by the public service commission. Any later monthly
license fees, when market conditions warrant, must be based with
reference to cost, but may take into account the market value of a
license to attach to the tower or towers, as determined and
approved by the public service commission, consistent with the
legislative findings and declarations in this article. The
parkways authority shall make application to the public service
commission in order to implement or to increase fees under this
section.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
§24-2-11c. Certificates of public convenience and necessity for
the West Virginia parkways, economic development and
tourism authority to construct towers; power with
respect to fees for tower access and attachment.
(a) The public service commission shall require certificates of public convenience and necessity for the construction,
maintenance and operation by the West Virginia parkways, economic
development and tourism authority of towers for wireless coverage
pursuant to the provisions of article sixteen-a, chapter seventeen
of this code. The public service commission may grant such a
certificate only upon a finding that a proper showing has been made
that the conditions enumerated under section thirty-two of article
sixteen-a, chapter seventeen of this code exist. In all other
respects, the procedure for considering an application for such a
certificate is to be the same as the procedure provided under
section eleven of this article, except as set forth in subsection
(c) of this section.
(b) The public service commission has the power to set fees
charged by the West Virginia parkways, economic development and
tourism authority for licenses to attach to towers constructed
under the provision of article sixteen-a, chapter seventeen of this
code.
(c) The staff of the public service commission shall assist
the West Virginia parkways, economic development and tourism
authority in preparing an application for a certificate of public
convenience and necessity, and in providing the necessary data and
other information that the commission may require in connection
with such application. In addition, the staff of the public
service commission shall assist the West Virginia parkways, economic development and tourism authority in preparing any
application for the implementation of or increase in fees for
attachments to towers, and in providing the necessary data and
other information that the commission may require in connection
with such application. The staff of the public service commission
shall nonetheless provide the commission with its independent
judgment on the merits of the substance of such applications for
public convenience and necessity or for the implementation of or
increase in fees for licenses to attach to towers.
NOTE: The purpose of this bill is to
authorize the parkways
authority to provide wireless communications coverage. In
conjunction with this authorization, the bill includes provisions
as follows: providing legislative findings to support the
authorization; requiring the parkways authority to obtain a
certificate of public convenience and necessity from the public
service commission before constructing, maintaining or operating
any wireless communication towers; authorizing the parkways
authority to license space to carriers and charge fees; requiring
the public service commission to require certificates of public
convenience and necessity for the construction and maintenance of
towers for wireless coverage by the parkways authority; and,
requiring the public service commission to assist the parkways
authority in preparing applications for public convenience and
necessity and in preparing applications to initiate or increase
fees charged for use of wireless communications towers.
These sections are new; therefore, strike-throughs and
underscoring have been omitted.
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