CHAPTER 31. CORPORATIONS.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 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
(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
(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.
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 VoIP 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 a type 2 and/or type 3 unserved
area, as defined in section six of this article.
(4) "Council" means the Broadband Deployment 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. §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 fifteen 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;
(5) The State Superintendent of Schools or his or her designee; and
(6) Ten 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;
(7) In addition to the fifteen 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.
(ii) One member representing the interests of the business community in this state;
(iii) One member representing incumbent local exchange carriers who provide broadband services in this state;
(iv) One member representing cable operators who provide broadband services in this state;
(v) One member representing competitive local exchange carriers who provide broadband services in this state;
(vi) One member representing broadband equipment or device manufacturers;
(vii) One member representing higher education or secondary education; and
(viii) Three 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.
(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) Eight voting members of the council constitute 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 for the purpose of better serving the public, including audio and video streaming, voice-over Internet protocol, teleconferencing and wireless networking; and
(3) Cooperate and assist in the expansion of electronic instruction and distance education services by July 2014.
(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, 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;
(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 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. In providing governmental funding for broadband deployment projects, the council shall give priority to funding for projects in areas without access to broadband service of any type or any speed before providing governmental funding for projects in areas with existing broadband service below the minimum speeds specified in section two of this article.
(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. The council shall also make any other reports as may be required by the Legislature or the Governor. §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 the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to appropriations by the Legislature.§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
(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.§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, to advise the council on the granting or denying of funding to projects, and to provide other
support and assistance as necessary to accomplish the purposes of this article. The provisions of article three, chapter fivea
of this code, shall not apply to the retention of an outside expert consultant pursuant to this section: Provided, that the
council shall select the expert or experts by a competitive selection process.§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. §31-15C-9. Development of guidelines and application for funding assistance; emergency rule-making authority.
(a) In order to implement and carry out the intent of this article in type 2 and type 3 unserved areas, the council shall propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, to develop comprehensive, uniform guidelines for use by the council in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop and execute a broadband deployment project in a type 2 or type 3 unserved area. The council may promulgate emergency rules pending authorization of the legislative rules.
(b) The guidelines shall include the following:
(1) The cost-effectiveness of the project;
(2) The economic development benefits of the project;
(3) The availability of alternative sources of funding that could help finance the project, including, but not limited to, private grants or federal funding and the efforts undertaken to obtain such funding;
(4) If the project requires the construction of a network, the applicant's ability to operate and maintain such network;
(5) The degree to which the project advances statewide broadband access and other state broadband planning goals;
(6) If the project involves the construction of a network, the proposed technologies, bandwidths, upstream data rates and downstream data rates;
(7) The estimated dates the project would commence and be completed;
(8) How the proposed project compares to alternative proposals for the same unserved area with regard to the number of people served, the amount of financial assistance sought, and the long- term viability of the proposed project; and
(9) Any other consideration the council deems pertinent in evaluating requests for funding assistance.
(c) Under no circumstances may the council's guidelines allow for the approval of any project for broadband service
involving the construction of a network that does not meet the minimum specifications for broadband service as set by the
Federal Communications Commission.
(d) The council shall create an application form that shall be used by all project sponsors requesting funding assistance
from the council to plan, acquire, construct, improve or otherwise develop and execute broadband deployment projects in
type 2 or type 3 unserved areas or broadband demand promotion projects. The application form shall advise applicants of
information required by state agencies that will issue permits and certificates regarding the project.
(e) The application form shall require the project sponsor to set forth:
(1) The proposed location of the project;
§31-15C-10. Requirements for project funding assistance; review of project application by council; competitive applications.
(2) If the project involves the construction of a network, the type(s) of unserved area(s) the project proposes to address;
(3) The estimated total cost of the project;
(4) The amount of funding assistance required and the specific uses of the funding;
(5) Other sources of funding available or potentially available for the project;
(6) Information demonstrating the need for the project;
(7) That the proposed funding of the project is the most economically feasible and viable alternative to completing the project; and
(8) Such other information as the council considers necessary.
(a) As determined by the council, project sponsors may submit applications for funding assistance.
(b) Broadband deployment projects, including projects involving the construction of a network, may be submitted for type 2 and/or type 3 unserved areas as those areas are categorized pursuant to section six of this article. Broadband demand promotion projects may be submitted on a statewide or regional basis.
(c) When a completed application is received for a project area, the council shall post notice with the Secretary of State
of the first completed application received for that project area. The notice shall be published in the State Register for sixty
days to allow for competing applications to be submitted to the council.
(d) Within thirty days of the close of the sixty-day notice period, the council shall review all applications timely received
during the sixty-day period and either:
(1) Approve funding for one or more projects after determining that the funding would constitute an appropriate
investment of public funds; or
(2) Deny the project funding request if the council determines that:
(A) The application does not contain all of the required information;
(B) Is incomplete;
(C) A proposed project is not eligible for funding assistance; or
(D) The proposed project is otherwise not an appropriate or prudent investment of state funds.
(e) Prior to approving or denying any funding request, the council may seek the advice of any expert consultant retained
pursuant to section seven of this article, but the council is not bound by that advice. The council shall also consider the
views, if offered, of affected members of the public, including private industry.
(f) To apply for or receive any funding assistance for a broadband deployment project or a broadband demand promotion
project from the council pursuant to this section, the project sponsor seeking the funding assistance shall submit a
completed application to the council on the form prepared for such purpose by the council pursuant to section nine of this
(g) In reviewing each application, the council may use the engineering, financial and technical expertise of outside
consultants in addition to the respective staffs of the government agencies and private-sector entities represented on the
council or other government agencies.
(h) Notwithstanding any provision of article fifteen-a, chapter thirty-one or any other provision of this code, broadband
deployment project proposals and broadband demand promotion project proposals submitted to the council for its
consideration pursuant to this article and the council's decisions with regard to such projects shall not be subject to review
by the West Virginia Infrastructure and Jobs Development Council. §31-15C-11. Required reporting by state entities.
(a) The Secretary of Administration shall submit a written report to the council by the thirty-first day of October of each year
describing in detail the existing broadband infrastructure owned, leased, used, or operated by the state; broadband
infrastructure purchased by the state; the demand for the infrastructure in the state; and whether or not that infrastructure is
available to the public. If significant changes to any of the information submitted to the council occur, the secretary of
administration shall submit a written update to the council within sixty days of the change or in the next report, whichever
date is sooner.
(b) The Secretary of Administration shall submit a written report to the council by the thirty-first day of October of each year
describing in detail the state portal, any state services or programs that are available to the public on the state portal; the
amount of usage of the portal; and efforts to create demand for the portal. If significant changes to any of the information
submitted to the council occur, the secretary of administration shall submit a written update to the council within sixty days of
the change or in the next report, whichever date is sooner.
(c) The chancellor of the higher education policy commission shall submit a written report to the council by the thirty-first day
of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or
purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase
the usage of broadband and broadband based educational applications in the public baccalaureate and graduate
institutions; and all training provided to instructors in the use of broadband and broadband based educational applications. If
significant changes to any of the information submitted to the council occur, the chancellor of the higher education policy
commission shall submit a written update to the council within sixty days of the change or in the next report, whichever date
(d) The chancellor of the West Virginia Council for Community and Technical College Education shall submit a written report
to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned,
leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or
initiatives designed to increase the usage of broadband and broadband based educational applications in the public
baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband
based educational applications. If significant changes to any of the information submitted to the council occur, the chancellor
of the West Virginia Council for Community and Technical College Education shall submit a written update to the council
within sixty days of the change or in the next report, whichever date is sooner.
(e) The State Superintendent of schools shall submit a written report to the council by the thirty-first day of October of each
year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all state
schools; all programs or initiatives designed to increase the usage of broadband and broadband based educational
applications in the schools and in Pre-K and early childhood education programs; all training provided to teachers in the use
of broadband and broadband based educational applications; the availability of an access to broadband in homes and
families with children aged four years to eight years; estimates of the number of families with children aged four years to
eight years who are using broadband in the homes; estimates of the ownership of computers in families with children aged
four years to eight years; and any unmet demand for broadband infrastructure in state schools. If significant changes to any
of the information submitted to the council occur, the state superintendent of schools shall submit a written update to the
council within sixty days of the change or in the next report, whichever date is sooner.
(f) The chair of the West Virginia healthcare authority shall submit a written report to the council by the thirty-first day of
October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased
by all hospitals, medical facilities, clinics, or healthcare providers; all programs, initiatives, or applications utilizing broadband
that are promoted by hospitals, medical facilities, clinics, or healthcare providers; and any unmet demand for broadband by
hospitals, medical facilities, clinics, or healthcare providers.§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.§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
(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.§31-15C-14. Expiration of council.
The council shall continue to exist until December 31, 2014, unless sooner terminated, continued or reestablished
pursuant to an act of the Legislature. Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited
for publication, and is not in any way official or authoritative.