ENGROSSED
COMMITTEE SUBSTITUTE
FOR
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)
____________
[Originating in the Committee on Government Organization;
reported February 26, 2003.]
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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 a new section, designated section
twenty-two-a; 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 construct, maintain, operate and lease wireless
communications towers; legislative findings; restrictions;
requiring the parkways authority to obtain a certificate of
public convenience and necessity from the public service
commission before constructing, maintaining, operating and
leasing any wireless communication towers; and authorizing the
parkways authority to license space to carriers and charge
fees.
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 a new section, designated section twenty-
two-a; 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-22a. Authority to construct, maintain, operate and lease
wireless communications towers.
(a) The Legislature finds:
(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 communications 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 if wireless communications towers were constructed,
maintained and operated at key locations along parkways of this
state and along roadways within seventy-five air miles of the
parkways of this state, wireless or other carriers might attach
their communications equipment; and
(5) That leasing such wireless communications towers to
wireless or other carriers would generate additional money to the
parkways authority and also to the state.
(b) Therefore, the Legislature declares:
(1) That it is in the public interest to authorize the
parkways authority to construct wireless communications towers at
key locations along parkways of this state and along roadways
within seventy-five air miles of the parkways of this state where
private industry is unable to furnish wireless communications
coverage;
(2) That it is in the public interest to authorize the
parkways authority to lease space on such wireless communications
towers to wireless or other carriers to attach their communications
equipment;
(3) That it is in the public interest to use parkways
authority's funds to construct, maintain and operate wireless
communications towers to provide sufficient coverage; and
(4) That such funds should be used only to supplement, not to
supplant, efforts of private industry.
(c) The parkways authority has the power to:
(1) Construct, maintain and operate wireless communications towers at locations along parkways of this state and along roadways
within seventy-five air miles of the parkways of this state but
only in areas where private industry is unable to furnish coverage;
(2) Lease space on wireless communications towers to wireless
or other carriers to access or attach their communications
equipment. The parkways authority shall provide reasonable and
nondiscriminatory access to all carriers to attach equipment to or
otherwise utilize the towers;
(3) Charge fees, as set by the public service commission, for
access to or attachment on the wireless communications towers. The
initial fees 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, as determined and approved by the public service commission,
consistent with the legislative findings and declarations in this
section. The parkways authority shall make application to the
public service commission to implement or increase fees under this
section; and
(4) Expend funds on wireless communications towers, consistent
with the other provisions of this article, including the hiring of
engineers or other professionals to assist in the design, planning,
construction, implementation, maintenance and operation of wireless
communications towers.
(d) Prior to any construction of wireless communications
towers, the parkways authority shall first obtain a certificate of
public convenience and necessity from the public service
commission. The parkways authority is expressly authorized to
prepare an application for a certificate and to take such other
necessary action to obtain a certificate. The application must
include a proper showing that the following conditions exist:
(1) That the construction and operation of the wireless
communications tower 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 wireless communications towers
for adequate wireless coverage to promote such safety or economic
development;
(3) That, if the wireless communications tower is constructed,
wireless carriers will attach their telecommunications equipment to
the tower, including a written commitment from at least one
wireless carrier per tower to do so;
(4) That the construction, maintenance, operation and leasing
of the wireless communications tower will be competitively neutral
and will not favor wireless carriers over wire line carriers by
providing an unfair subsidy from the state;
(5) That the construction, maintenance, operation and leasing
of the wireless communications tower by the parkways authority will not compete with private industry; and
(6) That the public interest will be served by the
construction, maintenance, operation and leasing of the wireless
communications tower by the parkways authority.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11c. Requirements for certificate of public convenience and
necessity before parkways authority constructs
wireless communications towers; power with respect
to fees for tower access and attachment.
(a) The public service commission shall require a certificate
of public convenience and necessity from the West Virginia
parkways, economic development and tourism authority before the
construction, maintenance, operation and leasing of wireless
communications towers, pursuant to the provisions of article
sixteen-a, chapter seventeen of this code.
(b) The public service commission may grant a certificate when
the following conditions exist:
(1) That the construction and operation of the wireless
communications tower 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 wireless communications towers for adequate wireless coverage to promote such safety or economic
development;
(3) That, if the wireless communications tower is constructed,
wireless carriers will attach their telecommunications equipment to
the tower, including a written commitment from at least one
wireless carrier per tower to do so;
(4) That the construction, maintenance, operation and leasing
of the wireless communications tower will be competitively neutral
and will not favor wireless carriers over wire line carriers by
providing an unfair subsidy from the state;
(5) That the construction, maintenance, operation and leasing
of the wireless communications tower by the parkways authority will
not compete with private industry;
(6) That the public interest will be served by the
construction, maintenance, operation and leasing of the wireless
communications tower by the parkways authority; and
(7) Such other reasonable conditions as required by the public
service commission.
(c) The procedure for considering an application for a
certificate is the same as the procedure provided under section
eleven of this article, except as set forth in subsection (d) of
this section.
(d) The public service commission may assist the West Virginia
parkways, economic development and tourism authority in preparing
an application for a certificate of public convenience and
necessity and an application for the implementation of or increase in fees for attachment to the wireless communications towers. The
commission may provide the necessary data and other information
that the commission requires in connection with such application.
(e) The public service commission has the power to set fees to
be charged by the West Virginia parkways, economic development and
tourism authority for licenses to attach to wireless communications
towers constructed under the provision of section twenty-two-a,
article sixteen-a, chapter seventeen of this code.