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WEST VIRGINIA CODE
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WVC 31 - CHAPTER 31. CORPORATIONS.
WVC 31 - 15 C- ARTICLE 15C. Broadband Deployment.
WVC 31 - 15 C- 1 §31-15C-1. Legislative findings and purpose.
The Legislature finds as follows:

(1) That it is a primary goal of the Governor, the Legislature and the citizens of this state, by the year two thousand ten, to make every municipality, community, and rural area in this state, border to border, accessible to internet communications through the expansion, extension and general availability of broadband services and technology.

(2) That although market-driven deployment has extended broadband access to most of West Virginia's cities, towns, and other concentrated population areas, some areas of the state, mostly rural, remain unserved.

(3) That based upon the same network principles that providers of telephony services have faced since the inception of the telecommunications industry, rising fixed costs and technological limitations prohibit broadband networks from being extended into rural areas where the level of demand in sparsely populated areas may not justify the required costs of construction.

(4) That the unique topography and demography of this state that hinders the provision of broadband access to rural areas of the state specifically disadvantages the elderly and low-income households that are the least likely to own computers or subscribe to internet service. In light of these topographical and demographic challenges, any attempt to fill the gaps in West Virginia's broadband availability must be organized according to the levels of demand in the various unserved areas to which service is sought to be extended.

(5) That, in particular, fair and equitable access to twenty-first century technology that will maximize the functionality of educational resources and educational facilities that are conducive to enabling our children to be exposed to and to receive the best of future teaching and learning is absolutely essential to this state. A quality educational system of the twenty-first century should have access to the best technology tools and processes. Administrators should have, among other things, the electronic resources to monitor student performance, to manage data, and to communicate effectively. In the classroom, every teacher in every school should be provided with online access to educational technology resources and the ability to deliver content standard and objectives to the students of West Virginia. Schools of the twenty-first century require facilities that accommodate changing technologies and twenty-first century instructional processes.

(6) Accordingly, it is the purpose of the Legislature to provide for the development of plans, processes and procedures to be employed and dedicated to extending broadband access to West Virginians, and to their families, by stimulating demand for those services and for encouraging and facilitating the construction of the necessary infrastructure to meet their needs and demands.

(7) In implementing this initiative, progress by market forces and industry is to be respected, and the Legislature intends that governmental assistance and funding is to be used only in those areas without broadband service and not to duplicate or displace broadband service in areas already served or where industry feasibly can be expected to offer services in the reasonably foreseeable future.

WVC 31 - 15 C- 2 §31-15C-2. Definitions.

     For the purposes of this article:

     (1) "Broadband" or "broadband service" means any service providing advanced telecommunications capability with the same downstream data rate and upstream data rate as is specified by the Federal Communications Commission and that does not require the end-user to dial up a connection that has the capacity to always be on, and for which the transmission speeds are based on regular available bandwidth rates, not sporadic or burstable rates, with latency suitable for real-time applications and services such as voice-over Internet protocol and video conferencing, and with monthly usage capacity reasonably comparable to that of residential terrestrial fixed broadband offerings in urban areas: Provided, That as the Federal Communications Commission updates the downstream data rate and the upstream data rate the council will publish the revised data rates in the State Register within sixty days of the federal update.

     (2) "Broadband demand promotion project" means a statewide or regional project to undertake activities to promote demand for broadband services and broadband applications.

     (3) "Broadband deployment project" means a project to provide broadband services in areas as defined in section six of this article.

     (4) "Council" means the Broadband Enhancement Council.

     (5) "Downstream data rate" means the transmission speed from the service provider source to the end-user.

     (6) "Upstream data rate" means the transmission speed from the end-user to the service provider source.

     (7) "Unserved area" means a community that has no access to broadband service.

WVC 31 - 15 C- 3 §31-15C-3. Broadband Enhancement Council; members of council; administrative support.

     (a) The Broadband Enhancement Council is hereby established. The council is a governmental instrumentality of the state. The exercise by the council of the powers conferred by this article and the carrying out of its purpose and duties are considered and held to be, and are hereby determined to be, essential governmental functions and for a public purpose. The council is created under the Department of Commerce for administrative, personnel and technical support services only.

     (b) The council shall consist of thirteen voting members, designated as follows:

     (1) The Secretary of Commerce or his or her designee;

     (2) The Department of Administration Chief Technology Officer or his or her designee; and

     (3) The Vice Chancellor for Administration of the Higher Education Policy Commission or his or her designee;

     (4) The State Superintendent of Schools or his or her designee; and

     (5) Nine public members that serve at the will and pleasure of the Governor and are appointed by the Governor with the advice and consent of the Senate, as follows:

     (i) One member representing users of large amounts of broadband services in this state;

     (ii) One member from each congressional district representing rural business users in this state;

     (iii) One member from each congressional district representing rural residential users in this state;

     (iv) One member representing urban business users in this state; and

     (v) One member representing urban residential users in this state.

     (6) In addition to the thirteen voting members of the council, the President of the Senate shall name two senators from the West Virginia Senate, one from each party, and the Speaker of the House shall name two delegates from the West Virginia House of Delegates, one from each party, each to serve in the capacity of an ex officio, nonvoting advisory member of the council.

     (c) The Secretary of Commerce shall chair the first meeting at which time a chair and vice chair shall be elected from the members of the council. In the absence of the chair, the vice chair shall serve as chair. The council shall appoint a secretary-treasurer who need not be a member of the council and who, among other tasks or functions designated by the council, shall keep records of its proceedings.

     (d) The council may appoint committees or subcommittees to investigate and make recommendations to the full council. Members of these committees or subcommittees need not be members of the council.

     (e) Seven voting members of the council constitute a quorum and the affirmative vote of a simple majority of those members present is necessary for any action taken by vote of the council.

     (f) The council is part time. Public members appointed by the Governor may pursue and engage in another business or occupation or gainful employment. Any person employed by, owning an interest in or otherwise associated with a broadband deployment project, project sponsor or project participant may serve as a council member and is not disqualified from serving as a council member because of a conflict of interest prohibited under section five, article two, chapter six-b of this code and is not subject to prosecution for violation of said section when the violation is created solely as a result of his or her relationship with the broadband deployment project, project sponsor or project participant so long as the member recuses himself or herself from board participation regarding the conflicting issue in the manner set forth in legislative rules promulgated by the West Virginia Ethics Commission.

     (g) No member of the council who serves by virtue of his or her office receives any compensation or reimbursement of expenses for serving as a member. The public members and members of any committees or subcommittees are entitled to be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of his or her official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.

§31-15C-4. Powers and duties of the council generally.

     (a) The council shall:

     (1) Explore any and all ways to expand access to broadband services, including, but not limited to, middle mile, last mile and wireless applications;

     (2) Gather data regarding the various speeds provided to consumers in comparison to what is advertised. The council may request the assistance of the Legislative Auditor in gathering this data;

     (3) Explore the potential for increased use of broadband service for the purposes of education, career readiness, workforce preparation and alternative career training;

     (4) Explore ways for encouraging state and municipal agencies to expand the development and use of broadband services for the purpose of better serving the public, including audio and video streaming, voice-over Internet protocol, teleconferencing and wireless networking; and

     (5) Cooperate and assist in the expansion of electronic instruction and distance education services.

     (b) In addition to the powers set forth elsewhere in this article, the council is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purpose and intent of this article. The council shall have the power and capacity to:

     (1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction or development of any broadband deployment project;

     (2) Promote awareness of public facilities that have community broadband access that can be used for distance education and workforce development;

     (3) Advise on deployment of e-government portals such that all public bodies and political subdivisions have homepages, encourage one-stop government access and that all public entities stream audio and video of all public meetings;

     (4) To make and execute contracts, commitments and other agreements necessary or convenient for the exercise of its powers, including, but not limited to, the hiring of consultants to assist in the mapping of the state and categorization of areas within the state;

     (5) Acquire by gift or purchase, hold or dispose of real property and personal property in the exercise of its powers and performance of its duties as set forth in this article;

     (6) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for and receive any funds, property or services from any person, governmental agency or organization to carry out its statutory duties; and

     (7) Perform any and all other activities in furtherance of its purpose.

     (c) The council shall exercise its powers and authority to advise the Legislature on bringing broadband service to unserved and underserved areas.

     (d) The council shall report to the Joint Committee on Government and Finance on or before January 1 of each year. The report shall include the action that was taken by the council during the previous year in carrying out the provisions of this article. To the extent the report addresses data gathered in connection with subdivision (2), subsection a, section four of this article, a copy of the report shall be provided to the Attorney General. The council shall also make any other reports as may be required by the Legislature or the Governor.

WVC 31 - 15 C- 4 §31-15C-4. Powers and duties of the council generally.

     (a) The council shall:

     (1) Explore any and all ways to expand access to broadband services, including, but not limited to, middle mile, last mile and wireless applications;

     (2) Gather data regarding the various speeds provided to consumers in comparison to what is advertised. The council may request the assistance of the Legislative Auditor in gathering this data;

     (3) Explore the potential for increased use of broadband service for the purposes of education, career readiness, workforce preparation and alternative career training;

     (4) Explore ways for encouraging state and municipal agencies to expand the development and use of broadband services for the purpose of better serving the public, including audio and video streaming, voice-over Internet protocol, teleconferencing and wireless networking; and

     (5) Cooperate and assist in the expansion of electronic instruction and distance education services.

     (b) In addition to the powers set forth elsewhere in this article, the council is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purpose and intent of this article. The council shall have the power and capacity to:

     (1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction or development of any broadband deployment project;

     (2) Promote awareness of public facilities that have community broadband access that can be used for distance education and workforce development;

     (3) Advise on deployment of e-government portals such that all public bodies and political subdivisions have homepages, encourage one-stop government access and that all public entities stream audio and video of all public meetings;

     (4) To make and execute contracts, commitments and other agreements necessary or convenient for the exercise of its powers, including, but not limited to, the hiring of consultants to assist in the mapping of the state and categorization of areas within the state;

     (5) Acquire by gift or purchase, hold or dispose of real property and personal property in the exercise of its powers and performance of its duties as set forth in this article;

     (6) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for and receive any funds, property or services from any person, governmental agency or organization to carry out its statutory duties; and

     (7) Perform any and all other activities in furtherance of its purpose.

     (c) The council shall exercise its powers and authority to advise the Legislature on bringing broadband service to unserved and underserved areas.

     (d) The council shall report to the Joint Committee on Government and Finance on or before January 1 of each year. The report shall include the action that was taken by the council during the previous year in carrying out the provisions of this article. To the extent the report addresses data gathered in connection with subdivision (2), subsection a, section four of this article, a copy of the report shall be provided to the Attorney General. The council shall also make any other reports as may be required by the Legislature or the Governor.

WVC 31 - 15 C- 5 §31-15C-5. Creation of the Broadband Enhancement Fund.

     All moneys collected by the council, which may, in addition to appropriations, include gifts, bequests or donations, shall be deposited in a special revenue account in the State Treasury known as the Broadband Enhancement Fund. The fund shall be administered by and under the control of the Secretary of the Department of Commerce. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article two, chapter eleven-b of this code: Provided, That any funds remaining in the fund of the former Broadband Development Council shall be transferred to the Department of Commerce by June 30, 2015.

WVC 31 - 15 C- 6 §31-15C-6. Categorization of areas within state for broadband deployment purposes.
Based on its analysis of mapping, broadband demand, and other relevant data, the council shall designate unserved areas of the state as being one of three distinct types. These types are as follows:

(1) Type 1 unserved area: an area in which broadband may be deployed by service providers in an economically feasible manner;

2) Type 2 unserved area: an unserved area in which broadband may be deployed by broadband service providers and other entities in an economically feasible manner, provided some form of public moneys is made available; and

(3) Type 3 unserved area: an unserved area in which, at present, cable or wireline broadband cannot be deployed in an economically feasible manner and an intermodal approach employing other technologies, such as satellite and wireless, is required to provide that area with high-speed internet access.

WVC 31 - 15 C- 7 §31-15C-7. Retention of outside expert consultant.

     In order to assist the council with the highly technical task of categorizing the areas of the state and evaluating and prioritizing projects, the council may retain an outside expert consultant or consultants qualified to map the state on the basis of broadband availability, to evaluate, categorize and prioritize projects, to assist in public outreach and education in order to stimulate demand and to provide other support and assistance as necessary to accomplish the purposes of this article.

WVC 31 - 15 C- 8 §31-15C-8. Stimulation of demand through public outreach and education.

  In order to implement and carry out the intent of this article, the council may take such actions as it deems necessary or advisable in order to stimulate demand through public outreach and education. The council shall consider the views, if offered, of affected members of the public, including private industry. WVC 31 - 15 C- 9 §31-15C-9. Development of guidelines and application for funding assistance; legislative rule-making authority.

  (a) In order to implement and carry out the intent of this article, the Secretary of the Department of Commerce, with the advice and recommendation of the council, shall propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code.

WVC 31 - 15 C- 10 §31-15C-10.

     Repealed.

Acts, 2015 Reg. Sess., Ch. 41.

WVC 31 - 15 C- 11 §31-15C-11.

     Repealed.

Acts, 2015 Reg. Sess., Ch. 41.

WVC 31 - 15 C- 12 §31-15C-12. Limitation of liability.
No person is subject to antitrust or unfair competition liability based on membership or participation in the council, which provides an essential governmental function and enjoys state action immunity.

WVC 31 - 15 C- 13 §31-15C-13. Protection of proprietary business information.
(a) Broadband deployment information provided to the council or its consultants and other agents, including, but not limited to, physical plant locations, subscriber levels, and market penetration data, constitutes proprietary business information and, along with any other information that constitutes trade secrets, shall be exempt from disclosure under the provisions of chapter twenty-nine-b of this code: Provided, That the information is identified as confidential information when submitted to the council.

(b) Trade secrets or proprietary business information obtained by the council from broadband providers and other persons or entities shall be secured and safeguarded by the state. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees of the state. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than five thousand dollars or confined in a correctional facility for not more than one year, or both.

(c) The official charged with securing and safeguarding trade secrets and proprietary data for the council is the Secretary of Administration, who is authorized to establish and administer appropriate security measures. The council chair shall designate two additional persons to share the responsibility of securing trade secrets or proprietary information. No person will be allowed access to trade secrets or proprietary information without written approval of a minimum of two of the three authorized persons specified above.

WVC 31 - 15 C- 14 §31-15C-14.

     Repealed.

Acts, 2015 Reg. Sess., Ch. 41.

Note: WV Code updated with legislation passed through the 2015 Regular Session
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