ENROLLED
Senate Bill No. 214
(By Senators Wooton, Ball, Bowman, Dittmar, Hunter,
Kessler, Ross, Schoonover, Snyder, Buckalew and Deem)
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[Passed March 14, 1998; in effect ninety days from passage.]
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AN ACT to repeal section seven, article eighteen, chapter five
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections two,
three, four, five, six, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, sixteen, seventeen, nineteen,
twenty-one, twenty-two, twenty-three, twenty-five, twenty- seven, twenty-eight, twenty-nine and thirty of said
article; to further amend said article by adding thereto
three new sections, designated sections eleven-a, eleven-b
and thirty-one; and to amend and reenact section three,
article three-d, chapter sixty-one of said code, all
relating generally to the regulation of cable television
service; establishing a short title; modifying prior
legislative findings and definitions; providing for
franchising authorities and requiring franchises for the
construction, operation or acquisition of cable television systems; providing for the continuation of existing
franchises and the enforcement of the terms and conditions
of existing franchise agreements; provides for the
creation, composition and delineation of the duties and
powers of the cable television subscribers protection
board; providing procedures for applications and proposals
for cable televisions franchises and establishing
application fees therefor; providing for public hearing
upon an application for a cable television franchise, and
for criteria to be considered on the question of the
issuance of franchises; providing for a written franchise
agreement and mandatory and permissive provisions and terms
therefor; permitting certain agreements involving cable
rates; providing general requirements relating to the
installation, construction and operation, and removal of
cable television systems; providing for revocation,
alteration and suspension of cable franchises; providing
for civil penalties; providing for the renewal of
franchises; restricting transfers of cable television
franchises; permitting the board to regulate rates in
certain instances; requiring adequate service; providing
refunds and credits for service interruptions; requiring
notices to subscribers regarding quality of service;
requiring recordation of subscriber complaints; requiring that the public service commission serve as a document
clearinghouse; providing a mechanism for the handling of
subscriber complaints; providing for other powers to be
vested in franchising authorities; requiring certain
reports to be filed by cable operators; providing for
annual fees and other franchise fees; providing for the
recovery of attorney's fees in actions against cable
operators; providing for liberal construction of certain
provisions of the article; termination of board;
establishing criminal offenses relating to the theft of
cable television services; and creating and defining a
misdemeanor offense, penalties, a civil action and remedies
for the attachment, maintenance or use of devices to
acquire unauthorized cable for commercial gain or
remuneration.
Be it enacted by the Legislature of West Virginia:
That section seven, article eighteen, chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections two, three, four, five, six,
eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen,
sixteen, seventeen, nineteen, twenty-one, twenty-two, twenty- three, twenty-five, twenty-seven, twenty-eight, twenty-nine and
thirty of said article be amended and reenacted; that said
article be further amended by adding thereto three new sections, designated sections eleven-a, eleven-b and thirty-one; and that
section three, article three-d, chapter sixty-one of said code
be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
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 cable television services in West
Virginia are often not subject to effective competition and that
cable television services have become more and more expensive
for the citizens of West Virginia, and that to the extent
permitted by federal law, the state of West Virginia should
provide a mechanism for the regulation of the service provided
and the prices charged by cable television operators. Further,
the Legislature finds that it is in the public interest to
establish 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 permit local franchising authorities to develop and
establish 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 within their franchise areas. The
purpose of this article is to promote such goals by all
available means not clearly preempted by federal law.
§5-18-3. Definitions.
As used in this article:
(1) "Applicant" means a person who initiates an application
or proposal.
(2) "Application" means a filing for a cable franchise.
(3) "Basic cable service" means any service tier which
includes the retransmission of local television broadcast
signals.
(4) "Board" means the West Virginia cable television
subscribers protection board created under the provisions of
this article.
(5) "Cable franchise" means a nonexclusive initial
authorization or renewal thereof issued pursuant to this
article, whether the authorization is designated as a franchise,
permit, order, contract, agreement or otherwise, which
authorizes the construction or operation of a cable system.
(6) "Cable operator" means any person or group of persons: (A) Who provides cable service over a cable system and directly
or through one or more affiliates owns a significant interest in
the cable system; or (B) who otherwise controls or is
responsible for, through any arrangement, the management and
operation of a cable system.
(7) "Cable service" means: (A) The one-way transmission to
subscribers of video programming or other programming service;
and (B) subscriber interaction, if any, which is required for
the selection of video programming or other programming service.
(8) "Cable system" means any facility within this state
consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is
designed to provide cable service which includes video
programming and which is provided to multiple subscribers within
a community, but does not include: (A) A facility that serves
only to retransmit the television signals of one or more
television broadcast stations; (B) a facility that serves only
subscribers in one or more multiple unit dwellings under common
ownership, control or management, unless that facility or
facilities uses any public right-of-way; or (C) a facility of a
public utility subject, in whole or in part, to the provisions
of chapter twenty-four of this code, except to the extent that
those facilities provide video programming directly to
subscribers.
(9) "County commission" means the commissioners composing
the county commission in pursuance of section nine, article IX
of the constitution of this state within whose jurisdiction
there exists a cable system or where such cable system is
hereafter constructed, operated, acquired or extended.
(10) "Facility" includes all real property, antennas,
poles, supporting structures, wires, cables, conduits,
amplifiers, instruments, appliances, fixtures and other personal
property used by a cable operator in providing service to its
subscribers.
(11) "Franchising authority" means a municipality, a county
commission or the West Virginia cable television subscribers
protection board.
(12) "Institution of higher education" means an academic
college or university accredited by the north central
association of colleges and schools.
(13) "Municipality" means any municipal corporation duly
chartered in the state of West Virginia within whose
jurisdiction there exists a cable system or where such cable
system is hereafter constructed, operated, acquired or extended.
(14) "Other programming service" means information that a
cable operator makes available to all subscribers generally.
(15) "Person" means an individual, partnership,
association, joint stock company, trust, corporation or governmental agency.
(16) "Proposal" means a filing solicited by the franchising
authority for a cable franchise.
(17) "Public, educational or governmental access
facilities" means: (A) Channel capacity designated for public,
educational or governmental uses; and (B) facilities and
equipment for the use of that channel capacity.
(18) "Public place" includes any property, building,
structure or water to which the public has a right of access and
use.
(19) "School" means an academic and noncollege type regular
or special education institution of learning established and
maintained by the department of education and the arts or
licensed and supervised by that department.
(20) "Service area" means the geographic area for which a
cable operator has been issued a cable franchise.
(21) "Video programming" means programming provided by, or
generally considered comparable to programming provided by, a
television broadcast station.
§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.
(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 from
also 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 a county commission elects not to act as the
franchise authority, the board shall become the franchise
authority. A county commission acting as a franchise authority
for unincorporated areas of the county may elect separately to
transfer to the board any franchise authority acquired from a
municipality. If any municipality or county commission so
elects not to be the franchise authority, the mayor or president
of the county commission shall certify such delegation in
writing to the presiding officer of the board. Such election
shall be promptly made upon written request of the board or the
cable operator.
§5-18-5. Existing cable franchises.
(a) The provisions of any cable franchise in effect on the
effective date of this article shall remain in effect, subject
to the express provisions of this article, and for no longer
than the then current remaining term of the franchise as such
franchise existed on the effective date. All terms and
conditions of any written cable franchise agreement entered into
between a cable operator and any franchising authority before
the effective date of the reenactment of this article in the
year one thousand nine hundred ninety-eight, including, but not
limited to, any provisions under which a cable operator has
voluntarily agreed to limit its cable rates to subscribers,
shall be enforceable under the provisions of this act.
(b) For purposes of subsection (a) of this section and
other provisions of this article, a cable franchise shall be
considered in effect on the effective date of this article if
such franchise was granted on or before such effective date.
§5-18-6. West Virginia cable television subscribers protection
board created; appointments and terms of members; meetings;
vacancies; quorum.
(a) There is hereby created, effective the first day of
July, one thousand nine hundred ninety-eight, a cable review
board to be known as the "West Virginia Cable Television
Subscribers Protection Board" which board shall, in consultation
with the attorney general's office, implement the provisions of this article and consider subscriber complaints in accordance
with the provisions of section twenty-five of this article.
(b) The terms of office of all of the members of the board
serving on the effective date of the reenactment of this section
in the year one thousand nine hundred ninety-eight shall expire
on the effective date of such reenactment, and the governor
shall appoint a new board forthwith as provided herein. The new
board shall consist of nine members, who shall be residents of
this state, and who shall be appointed from the lists of
nominees submitted to the governor pursuant to this subsection.
Each body submitting a list of nominees pursuant to this
subsection shall also submit a summary of the qualifications of
each nominee on the list. When a completed list of nominees is
submitted in accordance with the provisions hereof, the governor
shall make his or her appointment from the persons so nominated
on the list: Provided, That no member of the board serving on
the effective date of the reenactment of this section may be
considered for reappointment to service for a period of three
years following the conclusion of their previous term:
(1) The governor shall appoint one member to represent the
viewpoint of senior citizens living on fixed incomes. When this
member is to be appointed, the governor shall request from the
West Virginia chapter of the American association of retired
persons a list of three nominees for such position.
(2) The governor shall appoint one member to represent the
viewpoint of those cable operators whose cable system or systems
in the aggregate have five thousand subscribers or more, and one
member to represent the viewpoint of cable operators whose cable
system or systems in the aggregate have fewer than five thousand
subscribers. The governor shall request from the trade
association representing cable operators in this state a list of
three nominees for each such position of the board. All
nominees shall be persons with special experience and competence
in cable television operations.
(3) The governor shall appoint one member to represent the
viewpoint of municipalities within the state and one member to
represent the counties within the state. The governor shall
request from the associations representing the municipalities
and counties, respectively, a list of three nominees for such
position.
(4) The governor shall appoint one member to represent the
consumer advocate division of the public service commission.
The governor shall request from the director of the consumer
advocate division a list of three nominees for such position.
(5) The governor shall appoint one member to represent the
interests of the consumer protection and antitrust division of
the office of the attorney general. The governor shall request
from the attorney general a list of three nominees for such position.
(6) The governor shall appoint one member to represent the
interests of children and children's cable television
programming. The governor shall request from the governor's
cabinet on children and families a list of three nominees for
such position.
(7) The governor shall appoint one member to represent the
interests of the deaf and hard of hearing. The governor shall
request from the West Virginia commission for the deaf and hard
of hearing a list of three nominees for such position.
(8) No person who is employed by, who has any financial
dealings with, other than as a subscriber, or interest in any
cable operator or cable company shall be eligible to a seat on
the board.
(9) All appointments made by the governor under the
provisions of this section shall be with the advice and consent
of the Senate.
(c) Upon the initial appointment of members, the governor
shall specify the length of the beginning term which each member
shall serve, pursuant to this subsection. Three of the members
shall be appointed for terms of one year, three shall be
appointed for two years and three shall be appointed for three
years. The governor shall designate which members shall serve
initial terms of one, two or three years. After the initial terms have expired, all members of the board shall be appointed
for terms of three years. Members are eligible for
reappointment.
(d) The board shall meet at least once during each calendar
quarter, or more often as may be necessary, and at other times
upon the call of the chairman or upon the request of any three
members of the board. The chairman shall set the agenda for all
meetings. No meeting of the board may be conducted unless said
notice and agenda are given to the board members at least five
days in advance, as provided herein, except in cases of
emergency, as declared by the chairman, in which event members
shall be notified of the board meeting and the agenda in a
manner to be determined by the chairman. Five members of the
board shall constitute a quorum and no action may be taken by
the board unless agreed to by a majority of the members present.
(e) Each member of the board shall take and subscribe to
the oath or affirmation required pursuant to section five,
article IV of the constitution of West Virginia. A member may
be removed by the governor for substantial neglect of duty or
gross misconduct in office, after written notice and an
opportunity to reply.
(f) The board shall meet within thirty days of the initial
appointments to the board, at a time and place to be determined
by the governor, who shall designate a member to preside at that meeting until a chairman is elected. At its first meeting, the
board shall elect a chairman and such other officers as are
necessary.
(g) The board shall, within six months after the
appointment of the initial board, promulgate rules for its
procedure and to otherwise carry out its duties under the
provisions of this article. Such rules shall be promulgated as
legislative rules subject to legislative rule-making review and
subject to the administrative procedures act.
(h) The board may subpoena witnesses, compel their
attendance and testimony, administer oaths and affirmations,
take evidence and require by subpoena the production of books,
logs, papers, records or other evidence needed for the
performance of the board's duties or exercises of its power
under the provisions of section twenty-five of this article.
(i) The board may request the attorney general to provide
legal advice to the board and the attorney general shall comply
with the request. The board shall employ an executive secretary
to be compensated from the cable advisory board fund created
under the provisions of this article in an amount to be fixed by
the board. Such executive secretary shall be in charge of its
offices which shall be within the public service commission,
shall be responsible to the board for the maintenance of such
offices and shall be the custodian of all documents filed by cable operators and of any complaints or other documents which
may be filed with the board in accordance with the provisions of
this article. The board is also authorized to employ and assign
the necessary professional and clerical staff and such hearing
examiners as may be necessary to conduct hearings in such
various locations in the state, under the provisions of section
twenty-five of this article, in order to provide a convenient
forum for persons making subscriber complaints to be heard. The
salaries and expenses of any such staff and hearing examiners
shall be paid from the fees assessed and collected under
provisions of this article.
§5-18-8. Duties and powers of West Virginia cable television
subscribers protection board.
The West Virginia cable television subscribers protection
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 and 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, which
shall be not less than five nor more than ten years; 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, including any provision regulating the rates
for cable services to the extent that the same is not preempted
by federal law;
(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;
(3) Provide advice and technical assistance to other
franchising 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) Stimulate and encourage the creation of competition
between cable operators in every franchise area of this state.
§5-18-9. Application or proposal for cable franchise; fee;
certain requirements.
(a) No cable franchise shall be issued except upon written
application or proposal therefor to the franchising authority,
accompanied by a nonrefundable fee of one thousand dollars.
(b) An application for issuance of a cable franchise shall
be made on a form prescribed by the board. The application
shall set forth the facts as required by the board to determine
whether a cable franchise should be issued, including facts as
to:
(1) The citizenship and character of the applicant;
(2) The financial, technical and other qualifications of
the applicant;
(3) The principals and ultimate beneficial owners of the
applicant;
(4) The public interest to be served by the requested
issuance of a cable franchise; and
(5) Any other matters deemed appropriate and necessary by
the board, including the proposed plans and schedule of
expenditures for or in support of the use of public, educational
and governmental access facilities.
§5-18-10. Cable franchise application or proposal procedure;
public hearing; notice.
An application or proposal for a cable franchise shall be
processed as follows:
(1) After the application or proposal and required fee are
received by the franchising authority within sixty days, the
franchising authority shall notify an applicant in writing of
the acceptance or nonacceptance for filing of an application or
proposal for issuance of a cable franchise required by this
article.
(2) Within ninety days after the issuance of a notice of
acceptance for filing, the franchising authority shall hold a
public hearing on the application or proposal to afford
interested persons the opportunity to submit data, views or
arguments, orally or in writing. If the franchising authority
is the board, notice thereof shall be given to the city council and mayor of any municipalities affected, the county commission
of any counties affected and to any telephone or other utility
and cable company in the county or counties in which the
proposed service area is located, and a representative of the
governing body of a municipality or county commission may appear
at the public hearing to represent the interests of the public
which will be served by the issuance of a cable franchise. The
franchising authority shall also cause notice of the application
and hearing to be published at least once in each of two
successive weeks in a newspaper of general circulation in the
county or counties in which the proposed service area is
located. The last published notice shall appear at least
fifteen days prior to the date of the hearing.
(3) After holding a public hearing, the franchising
authority shall approve the application or proposal, in whole or
in part, with or without conditions or modifications, or shall
deny the application or proposal, with reasons for denial sent
in writing to the applicant. Upon denial of the application or
proposal, the applicant may appeal such denial to the circuit
court of the county in which the franchise is to be located,
which appeal shall be filed and considered in accordance with
the provisions of section four, article five, chapter
twenty-nine-a of this code. In such a proceeding, the applicant
shall have the burden of proving that the franchising authority acted unreasonably or arbitrarily in denying the application.
§5-18-11. Issuance of cable franchise authority; criteria;
content.
(a) A franchising authority is empowered to issue a cable
franchise to construct or operate facilities for a cable system
upon the terms and conditions provided in this article.
(b) The franchising authority, after a public hearing as
provided in this article, shall issue a cable franchise to the
applicant when the franchising authority is convinced that it is
in the public interest to do so. In determining whether a cable
franchise shall be issued, the franchising authority shall take
into consideration, among other things, any objections or
comments arising from the public hearing, along with any
objections or comments which have been submitted in writing, the
content of the application or proposal, the public need for the
proposed service, the ability of the applicant to offer safe,
adequate and reliable service at a reasonable cost to the
subscribers, the suitability of the applicant, the financial
responsibility of the applicant, the technical and operational
ability of the applicant to perform efficiently the service for
which authority is requested, and any other matters as the
franchising authority considers appropriate in the
circumstances.
(c) In determining the area which is to be serviced by the applicant, the franchising authority shall take into account the
geography and topography of the proposed service area, and the
present, planned and potential expansion in facilities or cable
services of the applicant's proposed cable system and any of the
applicant's existing cable systems.
(d) In issuing a cable franchise under this article, the
franchising authority is not restricted to approving or
disapproving the application or proposal, but may issue it for
only partial exercise of the privilege sought or may attach to
the exercise of the right granted by the cable franchise terms,
limitations which the franchising authority considers the public
interest may require. The cable franchise shall be
nonexclusive, shall include a description of the service area in
which the cable system is to be constructed, extended or
operated and the approximate date on which the service is to
commence.
§5-18-11a. Franchise agreement in writing; mandatory and
permissive terms and conditions.
(a) The complete terms and conditions of any franchise
shall be reduced to writing and shall be signed, in the form of
an agreement, by authorized persons on behalf of the franchising
authority and the franchisee.
(b) To the extent that these conditions are not preempted
by federal law, the written franchise agreement shall:
(1) State that the franchise is not exclusive;
(2) State that the franchising authority will not grant to
any other applicant a franchise for the same service area
containing more favorable terms and conditions than those
contained in the instant franchise agreement;
(3) State the term of the franchise, which shall not be
less than five years, nor more than ten years;
(4) Describe specifically the service area of the
franchise;
(5) Describe specifically the unserved and uncabled areas
within the jurisdiction of the franchising authority to which
the franchisee is required to expand its cable service;
(6) State specifically the time periods within which the
expansions set forth in subdivision (5) of this subsection are
required to be done;
(7) State specifically the minimum channels to be provided
to the subscribers of the system;
(8) State specifically the procedures by which the
franchisee may be required to provide additional channels to the
subscribers of the system;
(9) Recite specifically any maximum charges or rates to
which the franchisee has voluntarily agreed that it would limit
itself in imposing charges and rates on the subscribers of the
system for cable service subscriptions, including detailed charges for each type or package of subscription;
(10) Recite specifically whether or not the franchisee has
voluntarily entered into any agreement by which the franchisee
has agreed to limit itself in the increases it will impose ever
during the life of the franchise on the rates charged to
subscribers, and if so, the franchise agreement shall recite the
specific circumstances which the franchisee has voluntarily
agreed upon permitting increases in rates and the maximum
amounts by which cable rates may be increased in such
circumstances;
(11) State specifically the maximum amount(s) that the
franchisee may charge for any other service that it may perform,
including charges for hook-ups, disconnections, reconnections,
service calls and any other charges that the franchisee will
ever impose upon a subscriber;
(12) State specifically whether or not the franchisee is
permitted ever during the life of the franchise to increase
charges set forth in subdivision (11) of this subsection, and if
so, the circumstances permitting increases and the maximum
amounts by which those charges may be increased in such
circumstances;
(13) State specifically that subscribers shall be entitled
to credit upon their cable television bills for one thirtieth of
the subscriber's monthly bill for each day in which the subscriber has a loss of service for six hours or more;
(14) State specifically that the franchisee consents to the
jurisdiction of the circuit court of the county in which the
franchise is located for all suits and actions arising under the
provisions of this article or arising out of any franchise
agreement; and
(15) State specifically that an action to enforce the
provisions of this article, or for damages or other relief
contemplated under this article, may be brought by any of the
following persons:
(A) The franchising authority;
(B) Any subscriber of the franchisee's cable television
system; and
(C) Any person in any area to which the franchisee is
required to extend cable service.
The written franchise agreement may contain such other
terms and conditions as the parties may agree upon and reduce to
writing.
§5-18-11b. Voluntary agreements regarding cable rates
distinguished from rate regulation.
A cable operator or franchisee may enter into a voluntary
agreement with a franchising authority under which the cable
operator agrees to charge its subscribers less than the maximum
amount that it could charge under the lawful rate regulations of the board. Such an agreement shall be enforceable against the
cable operator, the board and any subscriber in the franchise
area. If a cable operator enters into such an agreement, the
limitations on cable rates therein shall not be construed as the
regulation of cable rates by the franchising authority.
§5-18-12. Cable system installation, construction, operation,
removal; general provisions.
(a) A cable franchise shall be construed to authorize the
construction or operation of a cable system within the service
area above, below, on, in or along any highway or other public
place and through easements which have been dedicated for
compatible purposes.
(b) The technical specifications, general routes of the
distribution system and the schedule for construction of the
cable system are subject to the approval of the franchising
authority.
(c) In installing, operating and maintaining facilities, the
cable operator shall avoid all unnecessary damage and injury to
any trees, structures and improvements in and along the routes
authorized by the franchising authority.
(d) The cable operator shall indemnify and hold the state,
county and municipality harmless at all times from any and all
claims for injury and damage to persons or property, both real
and personal, caused by the installation, operation or maintenance of its cable system, notwithstanding any negligence
on the part of the state, county and/or municipality, their
employees or agents. Upon receipt of notice in writing from the
state, county and/or municipality, the cable operator shall, at
its own expense, defend any action or proceeding against the
state, county and/or municipality in which it is claimed that
personal injury or property damage was caused by activities of
the cable operator in the installation, operation or maintenance
of its cable system.
(e) The cable operator shall provide a cable drop and basic
cable service at no cost to any school or institution of higher
education within its service area if service is actually being
delivered within a reasonable distance from the school or
institution of higher education which may request service.
(f) The cable operator shall be required to designate at
least ten percent but not more than three of all of its channels
for public, educational or governmental use.
(g) Upon termination of the period of the cable permit or of
any renewal thereof, by passage of time or otherwise, the cable
operator shall remove its facilities from the highways and other
public places in, on, over, under or along which they are
installed if so ordered by the franchising authority and shall
restore the areas to their original or other acceptable
condition or otherwise dispose of its facilities. If removal is not completed within six months of the termination, any property
not removed shall be deemed to have been abandoned and forfeited
to the franchising authority, and, if the property is removed,
the cable operator shall be liable for the cost of its removal.
(h) The use of public highways and other public places shall
be subject to:
(1) All applicable state statutes, municipal ordinances and
all applicable rules and orders of the public service commission
governing the construction, maintenance and removal of overhead
and underground facilities of public utilities;
(2) For county highways, all applicable rules adopted by the
governing body of the county in which the county highways are
situated; and
(3) For state or federal-aid highways, all public welfare
rules adopted by the secretary of the department of
transportation.
(i) In the use of easements dedicated to compatible purposes,
the cable operator shall ensure:
(1) That the safety, functioning and appearance of the
property and the convenience and safety of other persons is not
adversely affected by the installation or construction of
facilities necessary for a cable system;
(2) That the cost of the installation, construction,
operation or removal of facilities is borne by the cable operator; and
(3) That the owner of the property is justly compensated by
the cable operator for any damages caused by the installation,
construction, operation or removal of facilities by the cable
operator.
§5-18-13. Revocation, alteration or suspension of cable
franchise; penalties.
(a) Any cable franchise issued in accordance with the
provisions of this article may be revoked, altered or suspended
by the franchising authority after a hearing before the
franchising authority, for the following reasons:
(1) For making material false or misleading statements in,
or for material omissions from, any application or proposal or
other filing made with the franchising authority;
(2) For failure to maintain signal quality under the
standards prescribed by the board;
(3) For any sale, lease, assignment or other transfer of
its cable franchise without consent of the franchising
authority;
(4) Except when commercially impracticable, for
unreasonable delay in construction or operation or for
unreasonable withholding of the extension of cable service to
any person in a service area;
(5) For violation of the terms of its cable franchise;
(6) For failure to comply with this article or any rules,
regulations or orders prescribed by the board;
(7) For violation of its filed schedule of terms and
conditions of service; and
(8) For engaging in any unfair or deceptive act or
practice.
(b) In lieu of, or in addition to, the relief provided by
subsection (a) hereof, the franchising authority may fine a
cable operator, for each violation under the provisions of this
section, in an amount not less than fifty dollars nor more than
five thousand dollars for each violation. Each day's
continuance of a violation may be treated as a separate
violation pursuant to rules and regulations adopted by the
board. Any penalty assessed under this section shall be in
addition to any other costs, expenses or payments for which the
cable operator is responsible under other provisions of this
article.
(c) Any cable operator the franchise of which has been
revoked, modified or suspended pursuant to the provisions of
this section shall have the right to appeal such revocation,
modification or suspension to the circuit court of the county in
which the franchise is located. In such an appeal, the
appellant shall have the burden of proving that the franchising
authority acted in an arbitrary and capricious manner. If a petition for appeal is not filed with the circuit court by a
cable operator within thirty days of the action complained of,
then the right of such an appeal shall be forever waived.
§5-18-14. Renewal of cable franchise.
Any cable franchise issued pursuant to this article may be
renewed by the franchising authority upon approval of a cable
operator's application or proposal therefor and in accordance
with the provisions of federal law as the same is in effect on
the effective date of this article. The form of the application
or proposal shall be prescribed by the board. The application
or proposal fee shall be the same fee prescribed for franchise
applications. The periods of renewal shall be not less than
five nor more than ten years each. The board shall require of
the applicant full disclosure, including the proposed plans and
schedule of expenditures for or in support of the use of public,
educational or governmental access facilities.
§5-18-15. Transfer of cable franchise.
(a) No cable system and no cable franchise, including any
system without a franchise and any franchise in existence on the
effective date of this article, and including the rights,
privileges and obligations thereof, may be assigned, sold,
leased or otherwise transferred, voluntarily or involuntarily,
directly or indirectly, including a transfer of control of any
cable system, whether by change in ownership or otherwise, except upon written application to and approval of the
appropriate franchising authority or authorities. The form of
the application for transfer shall be prescribed by the board.
(b) Notice provisions may be prescribed by the board for
encumbrances creating potential transfers.
(c) The procedure for consideration of any transfer under
the provisions of this section shall conform, as nearly as
possible, to the procedures prescribed in this article for the
consideration of issuing cable franchises, including the
application fee therefor.
§5-18-16. Rates; filing with board; approval.
(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 to
the public and are not unduly discriminatory. The board's
primary mission in this regard is to keep the rates as low as
possible for the cable subscribers of this state.
(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.
(d) For purposes of this article, "rate regulation" does not include any voluntary agreement on the part of a cable
operator to limit cable rates to amounts specified in a
franchise agreement. If a franchise agreement provides for cable
rates in excess of those permitted by the board in the exercise
of its authority to regulate rates, then the rates set by the
board shall govern.
§5-18-17. Requirement for adequate service; terms and
conditions of service.
(a) Every cable operator shall provide safe, adequate and
reliable service in accordance with applicable laws, rules,
franchise requirements and its filed schedule of terms and
conditions of service.
(b) Every cable operator shall submit a schedule of all
terms and conditions of service in the form and with the notice
that the board may prescribe.
(c) The board shall ensure that the terms and conditions
upon which cable service is provided are fair both to the public
and to the cable operator, taking into account the geographic,
topographic and economic characteristics of the service area and
the economics of providing cable service to subscribers in the
service area.
§5-18-19. Credit or refund for interrupted service.
If cable service to a subscriber is interrupted for more
than twelve continuous hours, such subscriber shall, upon request, receive a credit or refund from the cable operator in
an amount that represents the proportionate share of such
service not received in a billing period, provided such
interruption is not caused by the subscriber.
§5-18-21. Notice to subscribers regarding quality of service.
(a) Annually, every cable operator shall mail to each of
its subscribers a notice which:
(1) Informs subscribers how to communicate their views and
complaints to the cable operator and to the board;
(2) States the responsibility of the board to receive and
act on consumer complaints concerning all matters regulated
under this article; and
(3) States the policy regarding the method by which
subscribers may request rebates or pro rata credit as described
in this article.
(b) The notice shall be in nontechnical language,
understandable by the general public, and in a convenient
format. On or before the thirtieth day of January of each year,
the operator shall certify to the franchising authority that it
has distributed the notice as provided in this section during
the previous calendar year as required by this section.
§5-18-22. Recording of subscriber complaints.
(a) Every cable operator shall keep a record or log of all
complaints received regarding quality of service, rates, programming, equipment malfunctions, billing procedure, employee
relations with customers and similar matters as may be
prescribed by the board. The records shall be maintained for a
period of two years.
(b) The record or log shall contain the following
information for each complaint received:
(1) Date, time, nature of complaint;
(2) Name, address, telephone number of complainant;
(3) Investigation of complaint; and
(4) Manner and time of resolution of complaint.
(c) Consistent with the subscriber privacy provisions
contained in federal law as the same is in effect on the
effective date of the reenactment of this article in the year
one thousand nine hundred ninety-eight, every cable operator
shall make the logs or records, or both, of such complaints
available to any authorized agent of the board and the
franchising authority, upon request during normal business hours
for on-site review.
§5-18-23. Public service commission to be franchise document
clearinghouse.
(a) Within sixty days of the effective date of this
article, all cable operators holding an existing franchise shall
file a copy of the franchise and any federal communications
commission rulings or other rulings affecting such franchises with the public service commission where such documents shall be
retained for examination by other franchising authorities and
citizens.
(b) Within sixty days of the granting of an initial
franchise, a renewal franchise or a transferred franchise, the
franchisee shall file a copy of the franchise and any federal
communications commission rulings or other rulings affecting
such franchise with the public service commission and the
franchising authority. The public service commission and
franchising authority shall maintain a file of all franchise
documents so recorded and make copies available upon request for
the cost of reproduction and mailing, plus a reasonable
administrative fee. The filing fee for initial, renewal or
transfer franchise documents is two hundred fifty dollars per
franchise, renewal or transfer of such franchise. In years in
which the filing of initial, renewal or transfer franchise
documents is not required, the franchisee shall pay a fee of one
hundred dollars for each franchise it holds.
(c) All such fees paid by any cable operator are franchise
fees with the intent and meaning of federal law as the same is
in effect on the effective date of the reenactment of this
article in the year one thousand nine hundred ninety-eight.
§5-18-25. Complaints; violations; penalties.
(a) Subscriber complaints regarding the operation of a cable system may be made in writing and filed with the board on
a form prescribed by the board. The complaint form shall be in
nontechnical language which is clearly understandable to the
general public. The board shall take up such complaints with
the cable operator complained against in an endeavor to bring
about satisfaction of the complaint without formal hearing.
(b) The board shall resolve all complaints, if possible,
informally. An informal complaint must contain the name and
address of the complainant, the name of the cable operator
against which the complaint is made, a clear and concise
statement of the facts involved and a request for affirmative
relief.
(c) In the event that the board cannot resolve the
complaint to the satisfaction of all parties, the complainant
may file a formal request to the board and he or she is entitled
to a hearing before the board. The complainant and cable
operator shall be afforded all rights including the right of
appeal as set forth herein.
(d) A cable operator may be subject to a fine or civil
penalty in accordance with subsection (e) hereof, upon a
determination by the board or court that the cable operator has
violated any of the following:
(1) The material terms of its cable franchise; or
(2) Substantial compliance with this article or rules or orders prescribed by the board.
(e) The board may fine or obtain civil penalties against a
cable operator for each violation of subsection (d) of this
section in an amount not less than fifty dollars nor more than
five hundred dollars for each violation. Any penalty assessed
under this section is in addition to any other costs, expenses
or payments for which the cable operator is responsible under
other provisions of this section.
(f) The board may permit, in lieu of a full hearing before
the board, one of its hearing examiners to conduct hearings and
report its findings to the board.
(g) No cable operator shall charge for more than one outlet
per household.
(h) No cable operator may raise rates or retier and charge
subscribers without providing complete compliance with the terms
of this article and the applicable franchise agreement.
(i) As an alternative to filing an informal or formal
complaint with the board, any subscriber or person to whom cable
service is required by the franchise agreement to be extended
may file an action in the circuit court of the county wherein
the franchise exists. In any such action, the circuit court
shall have authority to fashion any legal or equitable relief as
may be just and appropriate under the circumstances.
§5-18-27. Reports.
Each cable operator shall file with the board reports of
its financial, technical and operational condition and its
ownership. The reports shall be made quarterly in a form and on
the time schedule prescribed by the board and shall be kept on
file open to the public.
§5-18-28. Annual fees; effect of application and filing fees on
franchise fees.
(a) Each cable operator shall pay to the board an annual
fee in an amount not less than thirty cents per subscriber or
such greater annual fee as may be determined by the board. Such
funds and all other funds to be paid to the board under the
provisions of this article shall be deposited into a special
fund designated the "cable subscribers protection board fund".
Such fund shall be used for purposes of administering the
provisions of this article. To the extent permitted by federal
law, the board may prohibit cable operators from assessing
subscribers for any contribution toward the annual fee to be
paid hereunder.
(b) Any filing fee required under the provisions of this
article and the annual fee to be paid to the board under the
provisions of this section, together with any franchise fee paid
to any franchising authority, may not exceed the maximum amount
for any franchise fee as set forth in 47 U.S.C. §542 as the same
is in effect on the effective date of this article.
§5-18-29. Attorney's fees.
In any action authorized under this article, whether before
the board, the franchising authority or any other court or
tribunal, including proceedings in a circuit court, if the
decision or judgment be against a cable operator, then the cable
operator shall be liable to the opposing parties for all of
their costs, including their reasonable attorney's fees,
expended in the matter.
§5-18-30. Construction of article.
(a) With respect to the powers conferred by this article
upon franchising authorities, this article shall be liberally
construed in favor of franchising authorities.
(b) With respect to the rights of enforcement conferred by
this article upon franchising authorities, subscribers and other
citizens, this article shall be liberally construed in favor of
those rights.
§5-18-31. Termination of the West Virginia cable television
subscribers protection board.
Pursuant to the provisions of article ten, chapter four of
this code, the West Virginia cable television subscribers
protection board shall continue to exist until the first day of
July, two thousand.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3D. THEFT OF CABLE TELEVISION SERVICES.
§61-3D-3. Device or plan intended for acquisition or diversion;
penalties; civil action; remedies.
(a) A person who sells, gives or otherwise transfers to
another or offers, advertises or exposes for sale to another any
device, mechanism, tool or printed circuit, or any kit, plan or
instructional procedure for the making of such device,
mechanism, tool or printed circuit, with the knowledge that
another will acquire cable television services in violation of
this article; or who attaches, maintains the attachment of or
uses any of the foregoing devices for the purpose of
remuneration or for commercial advantage, with the knowledge
that cable television services will be or are being acquired in
violation of this article, shall be guilty of a misdemeanor and
shall be punishable in accordance with subsection (b) of this
section, or shall be civilly liable in accordance with
subsection (c) of this section, or both: Provided, That the
provisions of this section do not apply to solely private use of
the foregoing devices.
(b) A person convicted of a misdemeanor under this section
shall be punished as follows:
(1) Upon a first conviction under this section, the
defendant shall be fined not less than two hundred fifty
dollars, nor more than five hundred dollars.
(2) Upon a second conviction under this section, the defendant shall be fined not less than five hundred dollars, nor
more than one thousand dollars, or imprisoned in the county jail
not more than thirty days, or both fined and imprisoned.
(3) Upon a third conviction under this section, the
defendant shall be fined not less than five hundred dollars, nor
more than one thousand dollars, or imprisoned in the county jail
not less than sixty days, nor more than one year.
(c) Any cable operator, cable system or other aggrieved
party may bring an action in any court of competent jurisdiction
to enjoin and restrain any violation of the provisions of this
section, or may bring a civil action for damages, or both.