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.