COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 339
(By Senators Chafin and Minard)
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[Originating in the Committee on the Judiciary;
reported March 1, 1994.]
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A BILL to amend and reenact sections two, four, eight and
sixteen, article eighteen, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto a new
section, designated section thirty-one, all relating to the
West Virginia cable television systems act; legislative
findings; cable franchising authority; duties of West
Virginia cable television advisory board; when the West
Virginia cable television advisory board may become the
franchise authority; rates; filing with board; approval; and
providing for late fees.
Be it enacted by the Legislature of West Virginia:
That sections two, four, eight and sixteen, article
eighteen, chapter five of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted;
and that said article be further amended by adding thereto a new
section, designated section thirty-one, all to read as follows:
ARTICLE 18. WEST VIRGINIA CABLE TELEVISION SYSTEMS ACT.
§5-18-2. Legislative findings.
The Legislature finds that television is an important source
of information and entertainment affecting the welfare and
economy of the state, and that cable television services have
become widespread, often providing the only access to quality
television signals in many areas of the state. The Legislature
finds that it is in the public interest to establish uniform
standards within the state of West Virginia for the issuance,
renewal and transfer of cable television franchises; to establish
uniform standards for the provision of cable service; to
establish uniform procedures for the investigation and resolution
of complaints concerning cable service; and to establish just,
reasonable and nondiscriminatory rates and charges for the
provision of cable service in a service area where the
franchising authority has delegated to the West Virginia cable
television advisory board this authority. The purpose of this
article is to promote such goals by all available means not in
conflict with federal law, rules or regulations.
§5-18-4. Cable franchise required; franchising authority.
(a) No person may construct, operate or acquire a cable
system, or extend an existing cable system outside its designated
service area, without first obtaining a cable franchise from a
franchising authority as provided in this article.
(b) Any person operating a cable system on the effective
date of this article without a franchise shall, within sixty days
of the effective date of this article, notify the board in
writing setting forth: (1) The name, business address and
telephone number of the cable operator; (2) the principals and
ultimate beneficial owners of the cable system or systems; (3)the geographic location and service area of any cable system
operated by such person; and (4) the number of subscribers within
the cable system or systems. If the board shall not have been
appointed and organized within sixty days of the effective date
of this article, then such filing shall be made with the public
service commission where such documents shall be retained for
delivery to the board following the appointment and organization
of its members.
(c) The board shall, upon receipt of such information,
determine the appropriate franchising authority or authorities
for the purposes of the consideration of the issuance of a
franchise to such cable operator or operators and shall notify
the appropriate franchising authority or authorities and any such
cable system operator of the franchise application procedures to
be followed by the respective parties. Any such cable operator
shall, within sixty days of receipt of such notice from the
board, make formal application to the appropriate franchising
authority or authorities for a franchise in accordance with the
provisions of this article.
(d) The franchising authority shall be the municipality in
which a cable system is to be constructed, operated, acquired or
extended, or if there be no such municipality or if the
municipality so elects not to act as a franchising authority,
then the franchising authority shall be the county commission of
the county in which such cable system is to be constructed,
operated, acquired or extended: Provided, That nothing herein
shall prohibit any county commission of a county in which a
municipality acting as a franchising authority is located fromalso acting as a franchising authority for any cable system to
be constructed, operated, acquired or extended within the
jurisdiction of such county commission, nor prohibit any county
commission of a county acquiring the franchise authority from a
municipality from electing to transfer such authority to the
board.
(e) If any municipality or county commission elects not to
act as the franchise authority on or before the first day of
September, one thousand nine hundred ninety-four, the board shall
become the franchise authority. The election not to act as the
franchise authority, shall be deemed to have been made by a
municipality or county if by the first day of September, one
thousand nine hundred ninety-four, no valid franchise agreement
exists between any municipality or county commission and any
cable operator operating a cable system within said
municipality's or county commission's jurisdiction. Where more
than one cable system is in operation in a municipality or
county, this subsection applies only to the municipality's or
county commission's authority to be the franchise authority for
any cable system not having a franchise agreement on the first
day of September, one thousand nine hundred ninety-four, and,
this subsection will not otherwise invalidate an existing
franchise. Further, when the board acts as franchising authority
following a municipality's or county commission's election not to
act as the franchising authority, the board shall remit to the
municipality or county commission the amount of any franchise fee
allowed under 47 U.S.C. §542, and paid by the cable operator,
except that the board may retain a portion of the franchise feenot to exceed one percent of such cable operator' gross revenues
derived from the operation of the cable system: Provided, That
to be eligible to receive the payment of any excess franchise fee
the municipality or county commission must, within ninety days
following receipt of written notice from the board that the board
will be acting as franchise authority, pass an ordinance or enter
an order establishing the franchise fee to be imposed on the
cable operator. The board shall give thirty days written notice
to a cable operator for whom the board becomes the franchise
authority under this section to file an application for franchise
with the board. Failure of a cable operator to file an
application for franchise with the board is a violation of this
article.
§5-18-8. Duties of West Virginia cable television advisory
board.
The West Virginia cable television advisory board shall:
(1) Develop and maintain a statewide plan for the provision
of cable services, setting forth the objectives which the board
deems to be in the best interest of the citizens of this state;
(2) To the extent permitted by, and not contrary to
applicable federal law, rules and regulations:
(A) Prescribe standards for procedures and practices which
franchising authorities shall follow in considering the issuance
of cable franchises, which standards shall provide for the forms
of applications and proposals, the filing of all franchise
applications, proposals and related documents as public records,
with reasonable notice to the public that such records are open
to inspection and examination during reasonable business hours;the holding of a public hearing, upon reasonable notice to the
public, at which the applications or proposals shall be examined
and members of the public and interested parties are afforded a
reasonable opportunity to express their views thereon; the
rendition of a written report by the franchising authority made
to the public, setting forth the reasons for its decision in
awarding or not awarding the franchise; and such other procedural
standards governing the issuance of cable franchises mandated by
the provisions of this article or as the board may otherwise deem
necessary or appropriate to assure maximum public participation
and competition and to protect the public interest;
(B) Prescribe minimum standards for inclusion in franchises,
including maximum initial and renewal terms; minimum channel
capacity; provisions regarding public, educational or
governmental access facilities; a requirement that no such
franchise may be exclusive; standards necessary or appropriate to
protect the interests of viewers of free broadcast television and
the public generally, which prohibit or limit cable operators
from prohibiting or entering into agreements prohibiting the sale
or other transfer of rights for the simultaneous or subsequent
transmission over free broadcast television; and such other
standards for inclusion in franchises as the board shall deem
necessary or appropriate to protect the public interest;
(C) Prescribe standards by which a franchising authority
shall determine whether an applicant possesses (i) the technical
ability, (ii) the financial ability, (iii) the good character and
(iv) other qualifications necessary to operate a cable system in
the public interest;
(D) Prescribe standards for the construction and operation
of cable systems, which standards shall be designed to promote
(i) safe, adequate and reliable service to subscribers, (ii) the
construction and operation of systems consistent with the most
advanced state of the art, (iii) a construction schedule
providing for maximum penetration as rapidly as possible within
the limitations of economic feasibility, (iv) the construction of
systems with the maximum practicable channel capacity, facilities
for local program origination, facilities to provide service in
areas conforming to various community interests, facilities with
the technical capacity for interconnection with other systems
within regions as established in the board's statewide plan and
facilities capable of transmitting signals from subscribers to
the cable system or to other points, and (v) the prompt handling
of inquiries, complaints and requests for repairs;
(E) Prescribe such standards for the prohibition or
limitation of concentration of control over mass media and
communication companies and facilities and methods of enforcing
such standards, as the board may determine to be necessary or
appropriate to protect the public interest: Provided, That
nothing contained herein shall be construed to authorize the
impairment of any existing rights of any mass media and
communication company or any subsidiary thereof;
(F) Prescribe to regulating the rates for cable services to
the extent that the same is not in conflict with federal law,
rules or regulations, if a franchising authority has delegated
this authority to the board.
(3) Provide advice and technical assistance to otherfranchising authorities and community organizations in matters
relating to cable franchises and services;
(4) Establish minimum specifications for equipment, service
and safety of cable;
(5) Represent the interests of citizens of this state before
the federal communication commission and make available
information to the public on communications developments at the
federal level;
(6) Stimulate and encourage cooperative arrangements among
organizations, institutions, counties and municipalities in the
development of public, educational or governmental access
facilities;
(7) Maintain liaison with the communications industry and
other parties, both public and private, having an interest
therein, other states and political subdivisions of this state to
promote the rapid and harmonious development of cable services as
set forth in the legislative findings and intent of this article;
(8) Undertake such studies as may be necessary to meet the
responsibilities and objectives of this article; and
(9) Implement the provisions of this article in a manner
which is cognizant of the differing financial and administrative
capabilities of cable systems of different sizes.
§5-18-16. Rates; filing with board; approval.
If a franchising authority, by ordinance, designates the
board to regulate rates, then the cable operator shall:
(a) The board shall require each cable operator to file a
schedule of its rates of service on a form and with the notice
that the board may prescribe.
(b) To the extent permitted by federal law, the board shall
regulate rates to ensure that they are just and reasonable both
to the public and to the cable operator and are not unduly
discriminatory.
(c) To the extent permitted by federal law, the board shall
regulate charges other than those related to rates for the
provision of basic cable service to ensure that they are just and
reasonable and not unduly discriminatory.
§5-18-31. Late fees.
(a) For the purpose of this section, "late fees" includes
any fee, assessment or charge levied by a cable operator for the
purpose of recovering the costs of billing and processing
balances unpaid by the scheduled due date of a delinquent
subscriber's monthly bill.
(b) Cable operators that elect to charge late fees must use
one of the following methods:
(1) A fixed rate fee not to exceed five dollars may be
charged on the unpaid balance after the scheduled due date;
(2) A percentage fee not to exceed five percent may be
charged on the unpaid balance after the scheduled due date.
(c) Cable operators must provide written notice to cable
subscribers of the operator's late fee policy prior to charging
any late fees. One of the following methods shall be used:
(1) For companies with monthly, bi-monthly or quarterly
billing periods, notice shall be printed on or supplied with each
billing statement detailing the scheduled due date and the amount
or percentage rate of any possible late fee;
(2) For companies with annual or coupon book billingsystems, a written notice must be supplied to each subscriber at
least annually detailing the due date and amount or percentage
rate of any possible late fee. This information may be included
with any notice required by this article or by federal law to be
delivered to subscribers.
(d) Any late fee charged by a cable operator may be
collected only once on any individual billing statement for a
billing period, however long it remains unpaid.
(e) A late fee may not be imposed unless the scheduled due
date of a payment is at least fifteen days following the date the
bill or statement for such payment is mailed to the subscriber by
placing the same, postage prepared, in the United States mail.
NOTE: The purpose of this bill is to authorize the West
Virginia Cable Television Advisory Board to become the
franchising authority for a cable television system if a county
commission or municipality has failed to act as a franchising
authority by September 1, 1994. The bill authorizes the advisory
board to collect the franchise fee and remit it to the county or
municipality while retaining 1%. And, it authorizes a late fee
charge and requires written notice to cable subscribers of the
operator's policy, prior to charging late fees. The bill permits
cities and counties who franchise to regulate rates.