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Introduced Version Senate Bill 635 History

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Senate Bill No. 635

(By Senators Beach, Browning, Kessler (Mr. President), Unger, Williams, Stollings and Plymale)

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[Introduced February 17, 2012; referred to the Committee on Economic Development; and then to the Committee on Finance.]

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A BILL to amend and reenact §31-15A-2, §31-15A-3 and §31-15A-7 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto fourteen new sections, designated §31-15A-9a, §31-15A-10a, §31-15A-11a, §31-15A-12a, §31-15A-14a, §31-15A-15a, §31-15A-17c, §31-15A-18a, §31-15A-19a, §31-15A-20a, §31-15A-21a, §31-15A-22a, §31-15A-23a and §31-15A-24a; and to amend and reenact §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C-5 and §31-15C-14 of said code, all relating generally to development of broadband infrastructure and broadband deployment in this state; defining terms in West Virginia Infrastructure and Jobs Development Act; expanding number of council members under certain circumstances; requiring that broadband be considered in current and prospective planning for roads and highways; creating Infrastructure Fund for broadband middle mile infrastructure projects and providing for deposits and expenditures from the fund; giving additional powers to Infrastructure and Jobs Development Council regarding broadband middle mile infrastructure project; creating Infrastructure Fund for Broadband Middle Mile Development; providing for disposition of fund on termination or dissolution of council; providing that broadband middle mile projects funded by council to not be considered public improvements or subject to competitive bid requirements; authorizing council to issue broadband middle mile revenue bonds; creating Broadband Middle Mile Infrastructure Debt Service Fund; providing for funding of debt service fund; specifying requirements for and manner of issuance of bonds; providing for contents of trust agreement and trustee for bonds; specifying legal remedies of bondholders, noteholders and trustee; making broadband middle mile infrastructure revenue bonds lawful investments; providing for purchase, cancellation and refunding of bonds; specifying that bonds are not debt of state or any political subdivision thereof and are exempt from taxation; adding additional findings regarding broadband deployment; defining certain terms used in Broadband Deployment Act; adding two members to Broadband Deployment Council; expanding powers and duties of council; extending date for expiration of council; deleting obsolete language; and making technical corrections.

Be it enacted by the Legislature of West Virginia:

    That §31-15A-2, §31-15A-3 and §31-15A-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto fourteen new sections, designated §31-15A-9a, §31-15A-10a, §31-15A-11a, §31-15A-12a, §31-15A-14a, §31-15A-15a, §31-15A-17c, §31-15A-18a, §31-15A-19a, §31-15A-20a, §31-15A-21a, §31-15A-22a, §31-15A-23a and §31-15A-24a; and that §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C-5 and §31-15C-14 of said code be amended and reenacted, all to read as follows:

                ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT                 COUNCIL.

§31-15A-2. Definitions.

    For purposes of this article:

    (a) General. -- When used in this article, words defined in subsection (b) of this section have the meaning ascribed to them in this section, except in those instances where a different meaning is distinctly expressed or the context in which the word is used clearly that a different meaning is intended.

    (b) Definitions. --

    (1) “Bond” or “infrastructure revenue bond” means a revenue bond, note, or other obligation issued by the water development authority pursuant to this article, including bonds to refund such bonds and notes to renew such notes, and notes in anticipation of and payable from the proceeds of such bonds;

    (2) “Broadband Deployment Council” means the Broadband Deployment Council established in section three, article fifteen-c of this chapter, or any successor to all or any substantial part of its powers and duties;

    (3) “Broadband infrastructure” means all facilities, hardware and software and other intellectual property necessary to provide broadband services in this state, including, but not limited to, voice, video and data services;

    (4) “Broadband infrastructure revenue bond” means a revenue bond, note, or other obligation issued by the West Virginia Infrastructure and Jobs Development Council pursuant to this article to fund one or more broadband middle mile infrastructure projects, including bonds to refund such bonds and notes to renew such notes, and notes in anticipation of and payable from the proceeds of such bonds;

    (5) “Broadband” or “Broadband service” means any advanced telecommunications service that provides the end-user with the capability to originate and receive high-quality voice, data, graphics or video services using any technology that provides the end-user with a minimum download rate of four megabits per second and a minimum upload rate of one megabit per second from the service provider’s network to the end-user;

    (6) “Broadband transmission lines” means equipment lines, regardless of the technology or medium, including, but not limited to, copper wire, fiber-optic cable or coaxial cable, capable of transmitting broadband service;

    (b) (7) “Code” means the Code of West Virginia, 1931, as amended;

    (c) (8) “Cost” means, as applied to any project to be financed, in whole or in part, with infrastructure revenues or funds otherwise provided pursuant to this article, the cost of planning, acquisition, improvement and construction of the project; the cost of preliminary design and analysis, surveys, borings; the cost of environmental, financial, market and engineering feasibility studies, assessments, applications, approvals, submissions or clearances; the cost of preparation of plans and specifications and other engineering services; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights and any other interests required for the acquisition, repair, improvement or construction of the project; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved; the cost of excavation, grading, shaping or treatment of earth, demolishing or removing any buildings or structures; the cost of constructing any buildings or other improvements; the cost of all pumps, tanks, vehicles, apparatus and other machinery, furnishings and equipment; loan or origination fees and all finance charges and interest incurred prior to and during the construction and for no more than six months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, repairing, improving or constructing any project; the cost of placing any project in operation; and all other costs and expenses of any kind or nature incurred or to be incurred by the project sponsor developing the project that are reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project: Provided, That costs shall not include any amounts related to the ongoing operations of the owner or operator, depreciation thereof or any other cost which the council, or the Water Development Authority or the Broadband Deployment Council has not determined to be consistent with the purposes and objectives of this article;

    (d) (9) “Council” means the West Virginia infrastructure and jobs development council created in section three of this article;

    (10) “Department of Administration” means the Department of Administration established under article one, chapter five-a of this code, or any successor to all or any substantial part of its powers and duties;

    (e) (11)Division Department of Environmental Protection” means the Division Department of Environmental Protection established under article one, chapter twenty-two of this code, or any successor to all or any substantial part of its powers and duties;

    (f) (12) “Division of Health” means the Division of Health created in article one, chapter sixteen of this code, or any successor to all or any substantial part of its powers and duties;

    (13) “Download rate” when used in the context of broadband means the total sustainable transmission speed from the service provider’s network to the end-user;

     (g) (14) “Economic development authority” means the economic development authority established under article fifteen, chapter thirty-one of the code, or any successor to all or any substantial part of its powers and duties;

    (h) (15) “Emergency project” means a project which the council has determined: (1) Is essential to the immediate economic development of an area of the state; and (2) will not likely be developed in that area if construction of the project is not commenced immediately;

    (16) “End-user” when used in the context of broadband means any individual, business, agency, institution, entity or household that subscribers to broadband service provided by a service provider;

    (i) (17) “Governmental agency” means any county; municipality; watershed improvement district; assessment district; soil conservation district; sanitary district; public service district; drainage district; regional governmental authority and any other state governmental agency, entity, political subdivision or public corporation or agency authorized to acquire, construct or operate water or wastewater facilities or other infrastructure projects;

    (j) (18) “Housing Development Fund” means the West Virginia Housing Development Fund established under article eighteen of this chapter, or any successor to all or any substantial part of its powers and duties;

    (19) “Includes” and “including”, when used in this article, do not exclude other things otherwise within the definition or the sentence in which the term is used;

    (k) (20) “Infrastructure Fund” means the West Virginia Infrastructure Fund created and established in section nine of this article;

    (l) (21) “Infrastructure project” means a project in the state which the council determines is likely to foster and enhance economic growth and development in the area of the state in which the project is developed, for commercial, industrial, community improvement or preservation or other proper purposes, including, without limitation, tourism and recreational housing, land, air or water transportation facilities and bridges, industrial or commercial projects and facilities, mail order, warehouses, wholesale and retail sales facilities, middle mile broadband projects, and other real and personal properties, including facilities owned or leased by this state or any other project sponsor, and includes, without limitation: (1) The process of acquiring, holding, operating, planning, financing, demolition, construction, improving, expanding, renovation, leasing or otherwise disposing of the project or any part thereof or interest therein; and (2) preparing land for construction and making, installing or constructing improvements on the land, including water or wastewater facilities or any part thereof, steam, gas, telephone and telecommunications and electric lines and installations, broadband transmission lines, roads, bridges, railroad spurs, buildings, docking and shipping facilities, curbs, gutters, sidewalks, and drainage and flood control facilities, whether on or off the site;

    (m) (22) “Infrastructure revenue” means all amounts appropriated by the Legislature; all amounts deposited into the infrastructure fund; any amounts received, directly or indirectly, from any source for the use of all or any part of any project completed pursuant to this article; and any other amounts received by the State Treasurer, council, or the Water Development Authority or the Broadband Deployment Council for the purposes of this article: Provided, That funds for water and sewer infrastructure projects and funds for broadband middle mile infrastructure projects shall be kept separate;

    (23) “Last mile” when used in the context of broadband means any wired or wireless facilities, or portions thereof, which facilitate the extension of broadband service from a community access point to the end-user, and expressly excludes any middle mile facilities;

    (24) “Middle mile” when used in the context of broadband means any wired or wireless facilities, or portions thereof, which facilitate transport service for service providers or carriers, and provides connectivity between communities, community access points, network access points and carrier access points, but does not include any last mile facilities (or portions thereof) that provide connectivity to end-users;

    (25) “Middle mile fiber threshold” means a fiber optic cable containing no less than seventy-two individual strands of fiber with minimum performance characteristics consistent with nonzero dispersion shifted single mode optical fiber cable as defined by the International Telecommunication Union standard ITU-T G.655;

    (n) (26) “Need of the project sponsors” means there is a public need for a project. The council shall construe a population increase evidenced by the last two decennial censuses in a county in which a project is proposed, as a factor supporting the conclusion that a need exists for projects in that county;

    (27) “Network access point” when used in the context of broadband means the collection of national carriers that provide core interstate TCPIP backbone networks that comprise or make up primary portions of the national Internet backbone system and which provide direct connectivity on a national scale throughout the United States in addition to direct or indirect connectivity to international networks throughout the world;

    (o) (28) “Project” means any wastewater facility, water facility project or any combination thereof, or a broadband middle mile project, when the facility or project will be constructed or operated or to be constructed or operated by a project sponsor;

    (p) (29) “Project sponsor” means any governmental agency or person, or any combination thereof, including, but not limited to, any public utility or broadband service provider, which intends to plan, acquire, construct, improve or otherwise develop a project;

    (q) (30) “Public Service Commission” means the Public Service Commission of West Virginia created and established under section three, article one, chapter twenty-four of this code, or any successor to all or any substantial part of its powers and duties;

    (r) (31) “Person” means any individual, corporation, partnership, association, limited liability company or any other form of business organization;

    (s) (32) “Public utility” means any person or persons, or association of persons, however associated, whether incorporated or not, including, without limitation, any governmental agency, operating a wastewater facility or water facility as a public service, which is regulated by the Public Service Commission as a public utility under chapter twenty-four of this code or which is required to file its tariff with the Public Service Commission;

    (33) “Service provider” when used in the context of broadband means any service provider that provides broadband service to end-users and is certified to provide services in accordance with state and federal regulations;

     (t) (34) “State Development Office” means the West Virginia Development Office established under article two, chapter five-b of this code, or any successor to all or any substantial part of its powers and duties;

    (u) (35) “State infrastructure agency” means the division of health, Division Department of Environmental Protection, Housing Development Fund, Public Service Commission, State Development Office, Water Development Authority, Economic Development Authority, Broadband Deployment Council and any other state agency, division, body, authority, commission, instrumentality or entity which now or in the future receives applications for the funding of, and provides funding or technical assistance to, the planning, acquisition, construction or improvement of a project;

    (36) “Transport service” when used in the context of broadband means any service that provides a service provider or carrier with the ability to transport high-capacity voice, data, graphics or video between communities, community access points, network access points and carrier access points. Transport services do not include any last mile broadband services or other services provided directly to end-users;

    (37) “Upload rate” when used in the context of broadband means the total sustainable transmission speed from the end-user to the service provider's network;

    (v) (38) “Wastewater facility” means all facilities, land and equipment used for or in connection with treating, neutralizing, disposing of, stabilizing, cooling, segregating or holding wastewater, including, without limitation, facilities for the treatment and disposal of sewage, industrial wastes or other wastes, wastewater, and the residue thereof; facilities for the temporary or permanent impoundment of wastewater, both surface and underground; and sanitary sewers or other collection systems, whether on the surface or underground, designed to transport wastewater together with the equipment and furnishings therefor or thereof and their appurtenances and systems, whether on the surface or underground including force mains and pumping facilities therefor;

    (w) (39) “Water development authority” means the West Virginia water development authority continued pursuant to the provisions of article one, chapter twenty-two-c of this code, or any successor to all or any substantial part of its powers and duties; and

    (x) (40) “Water facility” means all facilities, land and equipment used for or in connection with the collection and/or storage of water, both surface and underground, transportation of water, storage of water, treatment of water and distribution of water all for the purpose of providing potable, sanitary water suitable for human consumption and use;

    (41) “West Virginia Infrastructure and Jobs Development Council” means the council established in section three, article fifteen-a of this chapter;

    (42) “West Virginia Network for Educational Telecomputing” means the network managed by the vice chancellor for administration of the Higher Education Policy Commission as provided in section two, article four, chapter eighteen-b of this code.

§31-15A-3. West Virginia Infrastructure and Jobs Development Council continued; members of council; staff of council.

    (a) The West Virginia Infrastructure and Jobs Development Council is continued. 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 shall be considered and held to be, and are determined to be, essential governmental functions and for a public purpose.

    (b) The Except as provided in subsection (d) of this section, the council shall consist of thirteen members, including:

    (1) The Governor or designee;

    (2) The Executive Director of the Housing Development Fund or his or her designee;

    (3) The Director Secretary of the Division Department of Environmental Protection or his or her designee;

    (4) The Director of the Economic Development Authority or his or her designee;

    (5) The Director of the Water Development Authority or his or her designee;

    (6) The Director of the Division of Health or his or her designee;

    (7) The Chairman of the Public Service Commission or his or her designee; and

    (8) Six members representing the general public: Provided, That there shall be at least one member representing the general public from each congressional district. No more than one member representing the general public may be a resident of the same county.

    (c) The Governor shall appoint the public members of the Council who shall serve three-year staggered terms.

    (d) Whenever the council discuses or votes upon a broadband infrastructure project or a broadband matter, the council shall, in addition to the members listed in subsection (b) of this section, include as voting members the Secretary of the Department of Administration, or his or her designee, and the Director of the West Virginia Network for Educational Telecomputing, or his or her designee.

    (e) The Commissioner of the Division of Highways, the Executive Director of the state rail authority, two members of the West Virginia Senate, two members of the West Virginia House of Delegates, the Chancellor of the Higher Education Policy commission and the Chancellor of the West Virginia Council for Community and Technical College Education serve as advisory members of the council. The advisory members shall be ex officio, nonvoting members of the Council.

    (e) (f) The Governor shall appoint the legislative members of the council: Provided, That no more than three of the legislative members may be of the same political party.

    (f) (g) The Governor shall appoint the representatives of the governing boards from a list of three names submitted by each governing board.

    (g) (h) The Governor or his or her designee shall serve as chairman and the council shall annually appoint a vice chairperson and shall appoint a secretary, who need not be a member of the Council and who shall keep records of its proceedings. Seven voting members of the Council shall constitute a quorum and the affirmative vote of at least the majority of those members present shall be necessary for any action taken by vote of the council. A vacancy in the membership of the council does not impair the rights of a quorum by such vote to exercise all the rights and perform all the duties of the council.

    (h) (i) A member of the council who serves by virtue of his or her office does not receive compensation or reimbursement of expenses for serving as a member. The public members are reimbursed for actual expenses incurred in the service of the council in a manner consistent with guidelines of the travel management office of the Department of Administration.

    (i) (j) The council meets at least monthly to review projects and infrastructure projects requesting funding assistance and otherwise to conduct its business and may meet more frequently if necessary. Notwithstanding any other provision of this article to the contrary, the Economic Development Authority is not subject to council review with regard to any action taken pursuant to the authority established in article fifteen, chapter thirty-one of this code. The Governor's civil contingent fund is not subject to council review with regard to projects or infrastructure projects funded through the Governor's Civil Contingent Fund.

    (j) (k) The Water Development Authority shall provide office space for the council and each governmental agency represented on the council shall provide staff support for the council in the manner determined appropriate by the council.

    (k) (l) The council shall invite to each meeting one or more representatives of the United States Department of Agriculture, Rural Economic Community Development, the United States Economic Development Agency and the United States Army Corps of Engineers or any successors thereto. The council shall invite other appropriate parties as is necessary to effectuate the purposes of this article.

§31-15A-7. Current and prospective planning; roads and highways;              report to Division of Highways.

    (a) The council shall take into account the current and prospective infrastructure needs in relation to plans of the Division of Highways for the development and building of new roads. Upon completion of an environmental impact study, the commissioner of highways shall provide the council with plans for any and all new roads. In a timely manner, the council shall advise the commissioner of the Division of Highways on the feasibility of the expansion of new or existing water and sewer lines and broadband transmission lines concomitant to the construction of the new roads.

    (b) The council has the authority to appoint local infrastructure planning teams. The local infrastructure planning teams may consist of the following: A designee of the Division of Highways from the region where the new road is being built; a designee of the Division of Highways from the central state office; a designee from the environmental engineers division of the Department of Health and Human Resources; a designee from the local developmental authority where the new road is being built; a designee from the regional developmental authority in the area where the new road is being built; a designee from the Public Service Commission; a designee from the Division Department of Environmental Protection; a designee from the county commission where the new road is being built who shall serve as chairperson of the planning team; a citizen of the county where the new road is being built to be chosen by the county commission; and the elected state delegates and senators from the area where the new road is being built. In order to avoid delay of any highway project, immediately upon appointment of a local infrastructure planning team, the director of the Division of Highways shall submit to the council a time frame within which the planning team must act and within which the planning team must submit any plans, maps, recommendations or reports developed pursuant to this subsection. The local infrastructure planning team shall meet prior to the development and building of a new road. Members of the local infrastructure planning team shall only receive payment for actual expenses incurred. The local infrastructure planning team shall advise the commissioner of the Division of Highways on the feasibility of an infrastructure plan. The local infrastructure planning team shall meet to develop an infrastructure plan that includes an assessment study of existing water and sewer lines and a feasibility study on future development and laying of water and sewer lines and broadband transmission lines. After these studies are completed, a developmental map shall be drawn of the proposed road route with overlays of the proposed water and sewer lines and any proposed broadband transmission lines. These studies and the map shall be presented to the commissioner of the Division of Highways and shall be used by the commissioner in the planning, developing and building of the road.

    (c) The water development authority shall establish a restricted account within the infrastructure fund to be expended for the construction of water and sewage lines and broadband transmission lines as may be recommended by the council in accordance with this article and specifically, in accordance with the plan developed under subsection (b) of this section. The reserve account shall be known as the "infrastructure road improvement reserve account". The council and the Division of Highways may enter into agreements to share the cost of financing projects approved in accordance with this section from moneys available in the infrastructure road reserve account and moneys available from the state road fund. Annually, the council may direct the water development authority to transfer funds from the infrastructure fund in an amount not to exceed $1 $2 million to the restricted account: Provided, That at no time may the balance of the restricted account exceed $1 $2 million.

    (d) For the purposes of this section the term "new" means a road right-of-way being built for the first time.

    (e) After the construction of water and sewer lines adjacent to the new road, these new lines shall be turned over to existing utilities by expansion of boundaries of public service districts or shall be main extensions from the municipality.

    (f) After the construction of any new broadband transmission lines in the new road right-of-way, the lines may be transferred to broadband service providers. The council shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to provide for the transfer of ownership of the new lines to broadband service providers and for the equitable nondiscriminatory right to the use of the new lines by all broadband service providers, subject to such appropriate limitations and restrictions as the council may determine.

§31-15A-9a. Infrastructure Fund for broadband middle mile infrastructure projects; deposits in fund; disbursements to provide loans, loan guarantees, grants and other assistance; loans, loan guarantees, grants and other assistance shall be subject to assistance agreements; use of funds for projects.

    (a) The council shall create and establish a special revolving fund of moneys made available by appropriation, grant, contribution or loan to be known as the "West Virginia Infrastructure Fund for Broadband Middle Mile Development". This fund shall be governed, administered and accounted for by the Infrastructure and Jobs Development Council as a special purpose account separate and distinct from any other moneys, funds or funds owned and managed by the Council for Broadband Deployment. The Infrastructure Fund for Broadband Middle Mile Development shall consist of subaccounts, as deemed necessary by the council, for the deposit of:

    (1) Infrastructure revenues for broadband middle mile deployment;

    (2) Any appropriations, grants, gifts, contributions, loan proceeds or other revenues received by the Infrastructure Fund for Broadband Middle Mile Development from any source, public or private;

    (3) Amounts received as payments on any loans made by the Infrastructure and Jobs Development Council to pay for the cost of a broadband middle mile infrastructure project;

    (4) Insurance proceeds payable to Infrastructure and Jobs Development Council or the Infrastructure Fund For Broadband Middle Mile Development in connection with any broadband middle mile infrastructure project;

    (5) All income earned on moneys held in the Infrastructure Fund for Broadband Middle Mile Development; and

    (6) All proceeds derived from the sale of bonds issued pursuant to this article for broadband middle mile infrastructure development.

    (b) Any money collected pursuant to this section shall be paid into the West Virginia Infrastructure Fund for Broadband Middle Mile Development by the state agent or entity charged with the collection of the same, credited to that infrastructure fund, and used only for purposes set forth in this article or article fifteen-c of this chapter.

    (c) Amounts in the Infrastructure Fund for Broadband Middle Mile Development shall be segregated and administered by the Infrastructure and Jobs Development council separate and apart from its other assets and programs. Amounts in the Infrastructure Fund for Broadband Middle Mile Development may not be transferred to any other fund or account or used, other than indirectly, for the purposes of any other program of the council, except that the council may use funds in the Infrastructure Fund for Broadband Middle Mile Development to reimburse itself for any administrative costs incurred by it and approved by the Infrastructure and Jobs Development Council in connection with any loan, loan guarantee, grant or other funding assistance made by the council pursuant to this article.

    (d) Notwithstanding any provision of this code to the contrary, amounts in the Infrastructure Fund for Broadband Middle Mile Development shall be deposited by the Infrastructure and Jobs Development Council in one or more banking institutions: Provided, That any moneys so deposited shall be deposited in a banking institution located in this state. The banking institution shall be selected by the Infrastructure and Jobs Development Council by competitive bid. Pending the disbursement of any money from the Infrastructure Fund for Broadband Middle Mile Development as authorized under this section, the Infrastructure and Jobs Development Council shall invest and reinvest the moneys subject to the limitations set forth in article eighteen, chapter thirty-one of this code.

    (e) To further accomplish the purposes and intent of this article and article fifteen-c of this chapter, the Infrastructure and Jobs Development Council may pledge infrastructure revenues and from time-to-time establish one or more restricted accounts within the Infrastructure Fund For Broadband Middle Mile Development for the purpose of providing funds to guarantee loans for broadband middle mile infrastructure projects: Provided, That for any fiscal year the Infrastructure and Jobs Development Council may not deposit into the restricted accounts more than twenty percent of the aggregate amount of revenues for broadband middle mile development deposited into the Infrastructure Fund for Broadband Middle Mile Development during the fiscal year. No loan guarantee shall be made pursuant to this article unless recourse under the loan guarantee is limited solely to amounts in the restricted account or accounts. No person shall have any recourse to any restricted accounts established pursuant to this subsection other than those persons to whom the loan guarantee or guarantees have been made.

    (f) Each loan, loan guarantee, grant or other assistance made or provided by the Infrastructure and Jobs Development Council or the Broad Band Deployment Council shall be evidenced by a loan, loan guarantee, grant or assistance agreement between the Infrastructure and Jobs Development Council and the project sponsor to which the loan, loan guarantee, grant or assistance shall be made or provided, which agreement shall include, without limitation and to the extent applicable, the following provisions:

    (1) The estimated cost of the broadband middle mile infrastructure project, the amount of the loan, loan guarantee or grant or the nature of the assistance, and in the case of a loan or loan guarantee, the terms of repayment and the security therefor, if any;

    (2) The specific purposes for which the loan or grant proceed shall be expended or the benefits to accrue from the loan guarantee or other assistance, and the conditions and procedure for disbursing loan or grant proceeds;

    (3) The duties and obligations imposed regarding the acquisition, construction, improvement or operation of the broadband middle mile infrastructure project; and

    (4) The agreement of the governmental agency to comply with all applicable federal and state laws, and all rules and regulations issued or imposed by the Infrastructure and Jobs Development Council or the Broad Band Deployment Council or other state, federal or local bodies regarding the acquisition, construction, improvement or operation of the broadband middle mile infrastructure project and granting the Infrastructure and Jobs Development Council the right to appoint a receiver for the broadband middle mile infrastructure project if the project sponsor should default on any terms of the agreement.

    (g) Any resolution of the Infrastructure and Jobs Development Council approving loan, loan guarantee, grant or other assistance shall include a finding and determination that the requirements of this section have been met and of article fifteen-c of this chapter have been met.

    (h) The Infrastructure and Jobs Development Council shall cause an annual audit to be made by an independent certified public accountant of its books, accounts and records, with respect to the receipts, disbursements, contracts, leases, assignments, loans, grants and all other matters relating to the financial operation of the Infrastructure Fund for Broadband middle Mile Development, including the operating of any sub-account within that infrastructure fund. The person performing such audit shall furnish copies of the audit report to the Secretary of the Department of Administration, where they shall be placed on file and made available for inspection by the general public. The person performing such audit shall also furnish copies of the audit report to the Legislature's Joint Committee on Government and Finance.

§31-15A-10a. Recommendations for expenditures of funds by loan, grant or for engineering assistance.

    (a) To further accomplish the purpose and intent of this article, the Infrastructure and Jobs Development Council may use the moneys in the Infrastructure Fund for Broadband Middle Mile Development created pursuant to section nine-a of this article to make loans, with or without interest, loan guarantees or grants and to provide other assistance, financial, technical or otherwise, to finance all or part of the costs of broadband middle mile infrastructure projects to be undertaken by a project sponsor: Provided, That any moneys disbursed from the Infrastructure Fund for Broadband Middle Mile Development in the form of grants shall not exceed twenty percent of the total funds available for the funding of projects. No loan, loan guarantee, grant or other assistance shall be made or provided except upon a determination by the Infrastructure and Jobs Development Council that the loan, loan guarantee, grant or other assistance and the manner in which it will be provided are necessary or appropriate to accomplish the purposes and intent of this article, based upon an application submitted to the council. Applications for loans, loan guarantees, grants or other assistance may be submitted by a project sponsor for one or more broadband middle mile infrastructure projects on preliminary application forms prepared by the Infrastructure and Jobs Development Council pursuant to section four of this article. Any recommendation of that council approving a loan, loan guarantee, grant or other assistance shall include a finding and determination by that council that the requirements of this section have been met. The Infrastructure and Jobs Development Council shall base any decisions to loan money for projects to project sponsors pursuant to this article solely on the need of the project sponsors.

    (b) The Infrastructure and Jobs Development Council has the authority in its sole discretion to make grants to project sponsors if it finds after discussion with the Broadband Deployment Council that the broadband middle mile infrastructure project is essential for economic development, the realization of educational opportunities, modernization of government, or facilitation of the ability of businesses and residents to use the Internet employing state-of-the art technologies. No project sponsor shall receive infrastructure grant money in an amount in excess of fifty percent of the total cost of the project. Therefore, the Infrastructure and Jobs Development Council may consider the economic or financial conditions of the area to be served.

    (c) As a condition for receipt of a grant or loan under this section:

    (1) The network provided or enhanced by the broadband middle mile infrastructure project shall be open access, subject to rules of the council;

    (2) The council shall reserve twelve strands of fiber for use by the state, its instrumentalities and political subdivisions; and

    (3) The council may require, in addition to any other conditions, that the applicant pursue other state or federal grant or loan programs.

    (d) The Infrastructure and Jobs Development Council shall develop criteria to be considered in making grants or loans to project sponsors which shall require consideration of the economic or financial conditions of the area to be served and the availability of other funding sources. The Infrastructure and Jobs Development Council shall adopt procedural rules regarding the manner in which grants loans will be awarded in conformity with this section. The procedural rules shall be adopted pursuant to article three, chapter twenty-nine-a of this code.

    (e) Notwithstanding any other provision of this article to the contrary, engineering studies and requirements imposed by the Infrastructure and Jobs Development Council for preliminary applications shall not exceed those engineering studies and requirements which are necessary for the council to determine the economic feasibility of the project. If the Infrastructure and Jobs Development Council determines that the engineering studies and requirements for the preapplication would impose an undue hardship on any project sponsor, the council may provide funding assistance to project sponsors to defray the expenses of the preapplication process from moneys available in the Broadband Middle Mile Infrastructure Fund for making loans: Provided, That the Infrastructure and Jobs Development Council may only provide funding assistance in an amount equal to $5,000 or fifty percent of the total preapplication cost of the project, whichever amount is greater. If the project is ultimately approved for a loan by the Infrastructure and Jobs Development Council, the amount of funding assistance provided to the project sponsor for the preapplication process shall be included in the total amount of the loan to be repaid by the project sponsor. If the project is not ultimately approved by the Infrastructure and Jobs Development Council, then the amount of funding assistance provided to the project sponsor will be considered a grant by the Infrastructure and Jobs Development Council and the total amount of the assistance shall be forgiven. In no event may the amount of funding assistance provided to all project sponsors exceed, in the aggregate, $100,000 annually.

    (f) The Infrastructure and Jobs Development Council shall report to the Governor, the Speaker of the House of Delegates and the President of the Senate during each regular and interim session of the Legislature, on its activities and decisions relating to distribution or planned distribution of grants and loans under the criteria to be developed pursuant to this article.

§31-15A-11a. Reservation of funds for broadband middle mile infrastructure projects.

    Funds deposited in the West Virginia Infrastructure Fund for Broadband Middle Mile Development shall be dedicated for the purpose of providing funding for the cost of broadband middle mile infrastructure projects as defined in section two of this article.

§31-15A-12a. Additional powers of Infrastructure and Jobs Development Council – Broadband middle mile infrastructure projects.

    To accomplish the purpose and intent of this article, the Infrastructure and Jobs Development Council is hereby empowered, in addition to all other powers granted to it under this code, after consultation with the Broadband Deployment Council, to:

    (1) Enter into agreements or other transactions with any federal or state agency in connection with any broadband middle mile infrastructure project;

    (2) Receive or administer on behalf of any federal or state agency grants, subsidies or other payments to be applied to the costs of any broadband middle mile infrastructure project financed, in whole or in part, or otherwise assisted by the Infrastructure and Jobs Development Council or the Broadband Deployment Council, including, but not limited to, payments to be applied to operating costs and debt service or obligations of any project sponsor;

    (3) Receive and accept aid or contributions from any source of money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions are made;

    (4) Establish and amend the criteria and qualifications for making loans, loan guarantees or grants, or providing any other assistance, for any broadband middle mile infrastructure project, and the terms of any loans, loan guarantee, grant or assistance agreement for any broadband middle mile infrastructure project; and

    (5) Do all things which are necessary to further the purposes and intent of this article.

§31-15A-14a. Disposition of Infrastructure Fund for Broadband Development upon termination or dissolution of council.

    Upon the termination or dissolution of the Infrastructure and Jobs Development Council, all rights and properties of the council with respect to the Infrastructure Fund for Broadband Middle Mile Development shall pass to and be vested in the state, subject to the rights of lienholders and other creditors.

§31-15A-15a. Broadband middle mile projects not to be considered public improvements; competitive bid requirements.

    (a) No broadband middle mile infrastructure project acquired, constructed or maintained or financed, in whole or in part, by the Infrastructure and Jobs Development Council shall be considered to be a "public improvement" within the meaning of the provisions of article five-a, chapter twenty-one of this code for purposes of the financing of the project.

    (b) The state and its subdivisions shall, except as provided in subsection (c) of this section, solicit competitive bids and require the payment of prevailing wage rates as provided in article five-a, chapter twenty-one of this code for the construction of every project or broadband middle mile infrastructure project funded pursuant to this article exceeding twenty-five thousand dollars in total cost.

    Following the solicitation of the bids, the construction contract shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance and payment bond: Provided, That the state and its subdivisions may reject all bids and solicit new bids on the project.

    (c) This section does not:

    (1) Apply to work performed on construction or repair projects not exceeding a total cost of fifty thousand dollars by regular full-time employees of the state or its subdivisions: Provided, That no more than fifty thousand dollars shall be expended on an individual project in a single location in a twelve-month period;

    (2) Prevent students enrolled in vocational educational schools from being used in the construction or repair projects when such use is a part of the students' training program;

    (3) Apply to emergency repairs to building components and systems: Provided, That the term "emergency repairs" means repairs that, if not made immediately, will seriously impair the use of the building components and systems or cause danger to those persons using the building components and systems; or

    (4) Apply to any situation where the state or a subdivision of the state comes to an agreement with volunteers, or a volunteer group, by which the governmental body will provide construction or repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the necessary labor without charge to, or liability upon, the governmental body: Provided, That the total cost of the construction or repair projects does not exceed fifty thousand dollars.

    (d) The provisions of subsection (b) of this section do not apply to privately owned broadband middle mile infrastructure projects.

§31-15A-17c. Infrastructure and Jobs Development Council empowered to issue broadband middle mile infrastructure revenue bonds and refunding bonds; creation of Broadband Middle Mile Infrastructure Revenue Debt Service Fund; funding of Broadband Middle Mile Infrastructure Revenue Debt Service Fund; requirements and manner of such issuance.

    (a) To accomplish the purpose and intent of this article, the Infrastructure and Jobs Development Council is hereby empowered to issue from time to time broadband middle mile infrastructure revenue bonds of the state in such principal amounts as the council deems necessary to make loans and loan guarantees and other forms of financial assistance to project sponsors for one or more broadband middle mile infrastructure projects: Provided, That the Infrastructure and Jobs Development Council may not issue any such bonds, other than refunding bonds, unless the council by resolution determines that the aggregate cost of the broadband middle mile infrastructure projects expected to be constructed during any annual period exceeds: (1) The projected annual infrastructure revenues for the same period; and (2) the principal and interest payments not otherwise pledged to the broadband middle mile infrastructure revenue debt service fund that are due the council on all outstanding loans previously made by the council pursuant to the provisions of this article.

    (b) The proceeds of broadband middle mile infrastructure revenue bonds shall be used solely for the purpose of making loans and loan guarantees and other forms of financial assistance to sponsors of one or more broadband middle mile infrastructure projects, and shall be deposited in one or more special accounts with the trustee under the trust agreement securing such bonds and disbursed from time to time for broadband middle mile infrastructure projects in accordance with this article: Provided, That notwithstanding any provision of this code to the contrary, twenty percent of the funds deposited in the special account shall be dedicated for the purpose of providing funding for costs of broadband middle mile infrastructure projects as defined in section two of this article.

    (c) The Infrastructure and Jobs Development Council may not authorize the disbursement of any proceeds of broadband middle mile infrastructure revenue bonds unless it has received documentation required by section ten-a of this article.

    (d) There is hereby created in the Infrastructure and Jobs Development Council a special fund which shall be designated and known as the "West Virginia Broadband Middle Mile Infrastructure Revenue Debt Service Fund," into which shall be transferred solely from the loan repayments deposited in the Infrastructure Fund for Broadband Middle Mile Development the amounts certified by the council as necessary to pay the principal, premium, if any, and interest on broadband middle mile infrastructure revenue bonds and any reserve requirements, subject to the terms of any agreement with the holders of the broadband middle mile infrastructure revenue bonds. All amounts deposited in the West Virginia Broadband Middle Mile Infrastructure Revenue Debt Service Fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any broadband middle mile infrastructure revenue bonds authorized by this article: Provided, That amounts on deposit in the fund may be used to establish or maintain reserves created for the purposes of securing the broadband middle mile infrastructure revenue bonds. The pledge shall be valid and binding from the time the pledge is made, and the West Virginia Broadband Middle Mile Infrastructure Revenue Debt Service Fund so pledged shall immediately be subject to the lien of the pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the Infrastructure and Jobs Development Council irrespective of whether the parties have notice thereof.

    (e) Except as may otherwise be expressly provided in this article or by resolution of the Infrastructure and Jobs Development Council, every issue of broadband middle mile infrastructure revenue bonds shall be special obligations of the Infrastructure and Jobs Development Council payable solely from amounts in the West Virginia Broadband Middle Mile Infrastructure Revenue Debt Service Fund, and the reserves created for this purpose by the council, without preference or priority among the bonds regardless of when issued, subject only to any agreements with the holders of any bonds to the contrary. All such bonds are hereby declared to be negotiable instruments.

    (f) Broadband middle mile infrastructure revenue bonds shall be authorized by resolution of the Infrastructure and Jobs Development Council. These bonds shall bear such dates and shall mature at such times, in case of any note or renewal thereof not exceeding five years from the date of issue of the original note, and in the case of any bond not exceeding fifty years from the date of issue, as the resolution may provide. Broadband middle mile infrastructure revenue bonds shall bear interest at a rate or rates, including variable rates, shall be taxable or tax-exempt, shall be in the denominations, shall be in registered form, shall carry the registration privileges, shall be payable in the medium and place of payment, and shall be subject to the terms of redemption as the Infrastructure and Jobs Development Council may authorize. Broadband middle mile infrastructure revenue bonds may be sold by the Infrastructure and Jobs Development Council at public or private sale at the price the council determines in consultation with the council. Broadband middle mile infrastructure revenue bonds shall be executed by the chairman and the vice chairman of the Infrastructure and Jobs Development Council, either or both of whom may use a facsimile signature. The official seal of the Infrastructure and Jobs Development Council or a facsimile thereof shall be affixed thereto or printed thereon and attested by manual or facsimile signature by the secretary-treasurer of the Infrastructure and Jobs Development Council. If any officer whose signature, or a facsimile of whose signature appears on any infrastructure revenue bond ceases to be such officer before delivery of such bond, such signature or facsimile is nevertheless sufficient for all purposes to the same extent as if he or she had remained in office until such delivery, and if the seal of the Infrastructure and Jobs Development Council has been changed after a facsimile has been imprinted on such bond, the facsimile will continue to be sufficient for all purposes.

    (g) Any resolution authorizing any infrastructure revenue bonds may contain provisions, subject to any agreement with bondholders or noteholders which may then exist, which agreements shall be part of the contract with the holder thereof, with respect to the pledge of or other use and disposition of amounts in the Broadband Middle Mile Infrastructure Revenue Debt Service Fund; the setting aside of reserve funds; the disposition of any assets of the Infrastructure and Jobs Development Council; limitations on the purpose to which the proceeds of sale of bonds may be applied; the authorization of notes issued in anticipation of the issuance of bonds; an agreement of the Infrastructure and Jobs Development Council to do all things necessary for the authorization, issuance and sale of such bonds in such amounts as may be necessary for the timely retirement of such notes; limitations on the issuance of additional bonds; the terms upon which additional bonds may be issued and secured; the refunding of outstanding bonds and the renewal of outstanding notes; the procedures, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated; the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given; and any other matter which in any way affects the security for or protection of the bonds.

    (h) In the event that the sum of all reserves pledged to the payment of the bonds is less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of the bonds, the chairman of the Infrastructure and Jobs Development Council shall certify, on or before the first day of December of each year, the amount of such deficiency to the Governor of the state for inclusion, if the Governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the Infrastructure and Jobs Development Council to be pledged for payment of such bonds: Provided, That the Legislature shall not be required to make any appropriations so requested, and the amount of such deficiencies shall not constitute a debt or liability of the state.

    (i) Neither the officers or board members of the Infrastructure and Jobs Development Council, nor any person executing the broadband middle mile infrastructure revenue bonds, shall be liable personally on the bonds or be subject to any personal liability or accountability by reason of the issuance thereof.

§31-15A-18a. Trustee for holders of broadband middle mile infrastructure revenue bonds; contents of trust agreement.

    (a) Any broadband middle mile infrastructure revenue bonds issued by the Infrastructure and Jobs Development Council under this article shall be secured by a trust agreement between the Infrastructure and Jobs Development Council and a corporate trustee, which trustee may be any trust company or banking institution having the powers of a trust company within this state.

    (b) Any trust agreement may pledge or assign the Broadband Middle Mile Infrastructure Revenue Debt Service Fund. Any trust agreement or any resolution providing for the issuance of such bonds may contain such provisions for protecting and enforcing the rights and remedies of the bondholders or noteholders as are reasonable and proper and not in violation of law, including the provisions contained in section seventeen-a of this article, and covenants setting forth the duties of the Infrastructure and Jobs Development Council in respect to the payment of the principal of and interest, charges and fees on loans made to, or bond purchases from, governmental agencies from the proceeds of the bonds, and the custody, safeguarding and application of all moneys. Any banking institution or trust company incorporated under the laws of this state which may act as depository of the proceeds of bonds or of the Infrastructure Debt Service Fund shall furnish such indemnifying bonds or pledge securities as are required by the Infrastructure and Jobs Development Council. The trust agreement may set forth the rights and remedies of the bondholders and noteholders and of the trustee and may restrict individual rights of action by bondholders and noteholders as customarily provided in trust agreements or trust indentures securing similar bonds and notes. The trust agreement may contain such other provisions as the water development authority deems reasonable and proper for the security of the bondholders or noteholders. All expenses incurred in carrying out the provisions of any such trust agreement may be treated as part of the cost of the construction, renovation, repair, improvement or acquisition of a project or infrastructure project.

§31-15A-19a. Legal remedies of broadband middle mile infrastructure revenue bondholders or noteholders and trustees.

    Any holder of broadband middle mile infrastructure revenue bonds issued pursuant to this article and the trustee under any trust agreement, except to the extent the rights given by this article may be restricted by the applicable resolution or trust agreement, may by civil action, mandamus or other proceedings protect and enforce any rights granted under the laws of this state or granted under this article, by the trust agreement or by the resolution in the issuance of the bonds, and may enforce and compel the performance of all duties required by this article, pursuant to the trust agreement or resolution, to be performed by the Infrastructure and Jobs Development Council or any officer thereof.

§31-15A-20a. Broadband middle mile infrastructure revenue bonds lawful investments.

    All broadband middle mile infrastructure revenue bonds issued pursuant to this article shall be lawful investments for banking institutions, societies for savings, building and loan associations, savings and loan associations, deposit guarantee associations, trust companies, and insurance companies, including domestic for life and domestic not for life insurance companies.

§31-15A-21a. Purchase and cancellation of broadband middle mile infrastructure revenue bonds.

    (a) The Infrastructure and Jobs Development Council, subject to such agreements with noteholders or bondholders as may then exist, shall have the power, from any funds available therefor, to purchase or redeem broadband middle mile infrastructure revenue bonds of the council.

    (b) If the broadband middle mile infrastructure revenue bonds are then redeemable, the price of the purchase shall not exceed the redemption price then applicable, plus accrued interest to the next interest payment date thereon. If the broadband middle mile infrastructure revenue bonds are not then redeemable, the price of the purchase shall not exceed the redemption price applicable on the first date after the purchase upon which the bonds become subject to redemption, plus accrued interest to such date. Upon purchase or redemption, the bonds shall be canceled.

§31-15A-22a. Refunding broadband middle mile revenue bonds.

    Any broadband middle mile infrastructure revenue bonds issued pursuant to the provisions of this article and at any time outstanding may at any time and from time to time be refunded by the Infrastructure and Jobs Development Council by the issuance of its refunding revenue bonds in an amount it deems necessary to refund the principal of the bonds to be refunded, together with any unpaid interest thereon, to provide additional funds for the Infrastructure and Jobs Development Council to, in its discretion, issue additional revenue bonds, and to pay any premiums and commissions necessary to be paid in connection therewith. Any refunding may be effected whether the broadband middle mile infrastructure revenue bonds to be refunded shall have then matured or shall thereafter mature: Provided, That the holders of any broadband middle mile infrastructure revenue bonds so to be refunded shall not be compelled without their consent to surrender their broadband middle mile infrastructure revenue bonds for payment or exchange prior to the date on which they are payable or, if they are called for redemption, prior to the date on which they are by their terms subject to redemption. Any refunding revenue bonds issued pursuant to this article shall be payable from the West Virginia Broadband Middle Mile Infrastructure Revenue Debt Service Fund, and shall be subject to the provisions contained in section seventeen-a of this article, and shall be secured in accordance with the provisions of sections seventeen-a and eighteen-a of this article.

§31-15A-23a. Broadband middle mile infrastructure revenue bonds not debt of state, county, municipality or any political subdivision.

    Broadband middle mile infrastructure revenue bonds issued pursuant to the provisions of this article shall not constitute a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state. The holders or owners thereof shall have no right to have taxes levied by the Legislature or the taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon. The broadband middle mile revenue bonds shall be payable solely from the revenues and funds pledged for their payment as authorized by this article. All such bonds shall contain on the face thereof a statement to the effect that the bonds, as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.

§31-15A-24a. Broadband middle mile infrastructure revenue bonds exempt from taxation.

    The exercise of the powers granted to the Infrastructure and Jobs Development Council authority by this article will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is for a public purpose. As the construction, acquisition, repair or renovation of broadband middle mile infrastructure projects will constitute the performance of essential governmental functions, the Infrastructure and Jobs Development Council shall not be required to pay any taxes or assessments upon any project or upon any property acquired or used by the Infrastructure and Jobs Development Council or upon the income therefrom. The broadband middle mile infrastructure revenue bonds and all interest and income thereon shall be exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof, except estate taxes.

ARTICLE 15C. Broadband Deployment.

§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 2010 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 last generation 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.

§31-15C-2. Definitions.

    (a) For the purposes of this article:

    (1) "Broadband" or "broadband service" means any service providing advanced telecommunications capability with either a downstream data rate or upstream data rate of at least 200 kilobits per second, 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 a minimum downstream-to-upstream data ratio of 10:1 for services with a downstream data rate of up to five megabits per second, and with a minimum upstream data rate of 500 kilobits per second for services with a downstream data rate of five megabits per second or greater. advanced service that provides the end-user with the capability to originate and receive high-quality voice, data, graphics or video telecommunications using any technology that provides the end-user with a minimum download rate of four megabits per second and a minimum upload rate of one megabit per second from the service provider’s network to the end-user;

    (2) "Broadband deployment project" means either: (a) a project to provide broadband services to a type 2 and/or type 3 unserved area, as defined in section six of this article; or (b) a project to undertake activities to promote demand for broadband services and broadband applications;

    (3) “Broadband Deployment Council” means the Broadband Deployment Council established under this article, or any successor to all or any substantial part of its powers and duties;

    (4) “Broadband infrastructure” means all facilities, hardware and software and other intellectual property necessary to provide broadband services in this state, including, but not limited to, voice, video and data;

    (5) “Broadband” or “broadband service” means any advanced telecommunications service that provides the end-user with the capability to originate and receive high-quality voice, data, graphics or video telecommunications using any technology that provides the end-user with a minimum download rate of four megabits per second and a minimum upload rate of one megabit per second from the service provider’s network to the end-user;

    (6) “Broadband transmission lines” means telecommunication equipment lines, regardless of the technology or medium, including, but not limited to, copper wire, fiber-optic cable or coaxial cable, capable of transmitting broadband service;

    (7) “Carrier” means any telecommunications service provider that provides transport services or other wholesale services to service providers and is duly certified to provide such services under state and federal regulations;

    (8) “Carrier access point” means any physical location whereby a carrier interconnects, or may interconnect, to one or more other carriers or service providers for the purpose of facilitating transport services;

    (9) “Community” means a city, town, incorporated or unincorporated area or portions thereof located in the State of West Virginia that is reasonably considered to be a populated area, as determined by the council;

    (10) “Community access point” when used in the context of broadband means a primary telecommunications facility, central office or serving wire center whereby a service provider aggregates and distributes broadband services to end users in a community over last mile facilities;

    (11) “Code” means the Code of West Virginia, 1931, as amended;

    (12) “Council” means the Broadband Development Council created in section three of this article;

    (13) “Download rate” means the total sustainable transmission speed from the service provider's network to the end-user;

    (3) (14) "Downstream data rate" means the transmission speed from the service provider source to the end-user;

    (15) “End-user” means any individual, business, agency, institution, entity or household that subscribes to broadband service provided by a service provider;

    (16) "Includes" and "including", when used in this article, do not exclude other things otherwise within the definition or the sentence in which the term is used;

    (17) “Last mile” means any wired or wireless facilities, or portions thereof, which facilitate the extension of broadband service from a community access point to the end-user, and expressly excludes any middle mile facilities;

    (18) "Middle mile" means any wired or wireless facilities, or portions thereof, which facilitate transport service for service providers or carriers, and provides connectivity between communities, community access points, network access points and carrier access points, but does not include any last mile facilities or portions thereof;

    (19) “Middle mile fiber threshold” means a fiber optic cable containing no less than seventy-two individual strands of fiber with minimum performance characteristics consistent with nonzero dispersion shifted single mode optical fiber cable as defined by the International Telecommunication Union standard ITU-T G.655;

    (20) Network access point” means the collection of national carriers that provide core interstate TCPIP backbone networks that comprise or make up primary portions of the national Internet backbone system and which provide direct connectivity on a national scale throughout the United States in addition to direct or indirect connectivity to international networks throughout the world;

    (21) “Service provider” means any telecommunications service provider that provides broadband service to end-users and is certified to provide services in accordance with state and federal regulations;

    (22) “Transport service” means any service that provides a service provider or carrier with the ability to transport high-capacity voice, data, graphics or video between communities, community access points, network access points and carrier access points. Transport services do not include any last mile facilities;

    (23) “Upload rate” means the total sustainable transmission speed from the end-user to the service provider's network;

    (4) (24) "Upstream data rate" means the transmission speed from the end-user to the service provider source; and

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

    (b) The definition of the term “broadband,” the designation of areas that are “unserved”, and the level of service required to qualify for funding of state programs and projects, are based on the Federal Communications Commission’s current definition of broadband, which is stated in terms of the number of Kilobits (Kbps) per second, either upstream or downstream. It is the intention of the Legislature that the definition of broadband in this article and the level of service requirements for state funding be promptly updated by future Legislatures to conform with any revisions enacted by Congress or any rule or regulation promulgated by the Federal Communications Commission or other federal agencies involved with deploying and enhancing broadband services.

§31-15C-3. Broadband Deployment Council established; members of council; administrative support.

    (a) The Broadband Deployment Council is continued. 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 eleven thirteen voting members, designated as follows:

    (1) The Governor or his or her designee;

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

    (3) The Secretary of Administration or his or her designee;

    (4) The Director of Homeland Security and Emergency Management or his or her designee; and

    (5) A voting member of the West Virginia Infrastructure and Development Council who is not already a member of the Broadband Deployment Council or his or her designee;

    (6) The Director of the West Virginia network for educational telecomputing or his or her designee;

    (5)(7) Seven 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 employees of communications and cable providers who is a member or representative of a union representing communications workers;

    (ii) One member representing telecommunications providers who provide broadband services in this state;

    (iii) One member representing cable operators who provide broadband services in this state;

    (iv) One member representing broadband equipment or device manufacturers;

    (v) One member representing higher education or secondary education; and

    (vi) Two members representing the general public who are residents of the state, one of whom shall represent rural communities, and who may not reside in the same congressional district.

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

    (c) The Secretary of Commerce or his or her designee shall chair the council and appoint one of the other council members to serve as vice chair. In the absence of the Secretary of Commerce or his or her designee, 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) Six Seven voting members of the council constitutes a quorum and the affirmative vote of at least the 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 the potential for increased use of broadband service for the purposes of education, career readiness, workforce preparation, and alternative career training;

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

    (3) Implement electronic instruction and distance education services by July, 2014; and

    (4) Make an ongoing study of the development broadband last mile infrastructure in this state and future needs.

    (a)(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;

    (2)(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, categorization of areas within the state, and evaluation of project applications: Provided, That the provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article;

     (3) (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;

    (4) (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

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

    (b) (c) The council shall exercise its powers and authority to bring broadband service to unserved areas. The council may not duplicate or displace broadband service in areas already served or where private industry feasibly can be expected to offer services in the reasonably foreseeable future.

§31-15C-5. Creation of the Broadband Deployment 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 Deployment Fund. The fund shall be administered by and under the control of the council. 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 for the fiscal year ending June 30, 2009, expenditures are authorized from collections rather than pursuant to appropriations by the Legislature.

§31-15C-14. Expiration of council.

    The council shall continue to exist until December 31, 2014 2017, unless sooner terminated, continued or reestablished pursuant to an act of the Legislature.



    NOTE: The purpose of this bill is to allow the Infrastructure and Jobs Development Council to issue broadband middle mile revenue bonds when there are sufficient revenues for the issuance of those bonds. The council would be required to keep funds for water and sewer infrastructure projects separate and apart from funds for broadband middle mile infrastructure projects. For purposes of taking action on broadband middle mile infrastructure projects or matters, the council would be increased by two members, the Secretary of Administration, or his or her designee, and the director of WVNET. Additional legislative finding are made regarding broadband deployment. Two members would be added to the Broadband Deployment Council – a member of the Infrastructure and Jobs Development Council not already a member of the Broadband Development Council and the director of WVNET. The powers and duties of the Broadband Deployment Council would be expanded. Lastly, the expiration date of the Broadband Deployment Council would be extended from December 31, 2014 to December 31, 2017.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.


    Sections §31-15A-9a, §31-15A-10a, §31-15A-11a, §31-15A-12a, §31-15A-14a, 31-15A-15a, §31-15A-17c, §31-15A-18a, §31-15A-19a, §31-15A-20a, §31-15A-21a, §31-15A-22a, §31-15A-23a and §31-15A-24a are new; therefore, strike-throughs and underscoring have been omitted.

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