(a) Legislative findings. The Legislature finds:
(1) That access to broadband services is of critical importance to and a necessary
prerequisite for enabling economic development in the state and for improving education,
health care, public safety and government services, among other benefits to its citizens;
(2) That broadband expansion into unserved rural areas of the state continues to be an issue
of importance to the Legislature, and progress is hindered by lack of full development of
middle-mile broadband fiber infrastructure within the state; u
(3) That the issues which have hindered the provision of broadband access to rural areas of
the state especially disadvantage the elderly and low-income households;
(4) That it continues to be a primary goal of the Legislature to make every municipality,
community, and rural area in this state accessible tlo Internet communications through the
expansion, extension, and general availability of broadband services and technology;
(5) That regulated electric utilities have existing distribution infrastructure in place
throughout the state, and that their existing and new infrastructure could be utilized in
connection with construction of middle-mile broadband fiber assets;
(6) That it is in the public interest to expedite construction of middle-mile broadband fiber
infrastructure to provide the necessary architecture to facilitate additional broadband
Internet access to individuals and institutions in unserved areas of the state; and
(7) That it is appropr iate to establish a program to allow electric utilities to construct middle-
mile fiber broadband assets within the power supply zone utilizing existing and new electric
utility distribution assets in a manner that addresses the needs of the public and is
consistent with the operational concerns of the electric utilities that may participate in this
program.
(b) Definitions. For purposes of this section:
"Commission" means the Public Service Commission of West Virginia.
"Council" means the Broadband Enhancement Council, as defined in §31G-1-1, et seq. of this
code.
"Electric utility" means any electric utility operating within this state that is regulated by the
commission: Provided, That an electric utility that has installed middle-mile fiber broadband
infrastructure pursuant to this section shall not be considered a public utility engaged in the
transmission of messages by telephone, telegraph or radio for purposes of §24-2-1(a) of this
code.
"Program" means the Middle-mile fiber Broadband Expansion Program established pursuant
to subsection (c) of this section.
"Project" means one or more middle-mile fiber infrastructure expansion projects, including
any portion of such projects to be used for the electric utility's communication needs,
proposed by an electric utility and approved by the commission pursuant to subsection (e) of
this section as part of the program. e
"Served" means any area with broadband service as defined in §31G-1-2 of this code.
"Unserved" means any area without broadband service as defineud in §31G-1-2 of this code.
(c) Establishment of program. Commencing July 1, 2020, the Middle-Mile Fiber Broadband
Infrastructure Expansion Program is hereby authorized and established.
(d) Authorizing participation. An electric utility having distribution infrastructure in this
state may participate in the program pursuant to thle provisions of this section.
(e) Powers and duties of Public Service Commission to act on written plans and amendments
to written plans. The commission shall have the following powers and duties in connection
with the program:
(1) Review, approve, or reject each written plan submitted by an electric utility pursuant to
subsection (f) of this section. A written plan shall be approved if the commission determines
that the proposed plan is reasonable, prudent, useful, and is not contrary to the public
interests, considering the interests of the potential broadband users and the electric utility
customers.
(2) Review, approve, or reject amendments to written plans submitted by an electric utility
pursuant to subsection (f) of this section. Amendments to a written plan shall be approved if
the commission determines that the proposed amendments to a written plan are reasonable,
prudent, useful and not contrary to the public interest considering the interests of the
potential broadband users and the electric utility customers.
(3) Perform any other duties necessary to effectuate the provisions of this section.
(f) Written plan. Following the council's determination that construction, installation,
operation, and repair of a middle-mile broadband infrastructure expansion project by an
electric utility is feasible pursuant to §31G-4-5 of this code, the electric utility shall file a
written plan and application seeking the commission's approval of the project and its
associated cost recovery. The written plan and application is in lieu of a proceeding pursuant
to §24-2-11 of this code and shall contain the following:
(1) The route of the middle-mile fiber infrastructure proposed for the project, the number of
fiber strands that would be utilized in connection with the proposed project and dedicated to
serve as the middle-mile, the location of the electric utility's distribution infrastructure that
will be utilized in connection with the proposed project, the capacity or number of fiber
strands of the middle-mile that will be available to lease to non-governmental last-mile
broadband Internet providers and other third parties upon completion of the proposed
project, and the commitment of at least one non-governmental last-mile broadband Internet
provider that will lease access to the middle-mile fiber assets constructed as part of the
proposed project, and an estimate of potential broadband customers, determined in
consultation with the council, that would be served by the middle-mile infraestructure;
(2) The estimated cost of the proposed project, including, but not limiterd to, engineering
costs, construction costs, permitting costs, right of way costs and a reasonable allowance for
funds used during construction;
(3) Proposed schedule of construction of the proposed projectt;
(4) Method of attachment and connection of the middlae-mile broadband fiber assets to the
electric utility's distribution infrastructure;
(5) Testimony, exhibits or other evidence thats demonstrates the project is reasonable,
prudent, useful and not contrary to the public interest;
(6) A cost recovery mechanism that allocates all net costs to be recovered under this section
on a distribution-level basis; and
(7) Other information the applicant considers relevant or the commission requires.
(g) The electric utility shall publish, in the form the commission directs, which form shall
include, but not be limited to, the anticipated monthly and yearly electric rate increase, if
any, and actual rates under the proposal, by average percentage and dollar amount for
customers witVhin a class of service, as a Class I legal advertisement in compliance with the
provisions of §59-3-1 et seq. of this code, the publication area to be each county in which
service is provided by the electric utility, a notice of the filing of the application and that the
commission shall hold a hearing on the application within 90 days of the notice; unless no
opposition to the plan or the rate change is received by the commission within the time
limits established by the commission, in which case the hearing can be waived, and the
commission shall issue a final order within 150 days of the application filing date: Provided,
That upon the request of any interested person or entity, the commission shall allow for the
submission of comments on the feasibility of the plan.
(h) Upon notice and hearing, if required by the commission, the commission shall approve
the plan and allow expedited recovery of costs related to the expenditures as provided in
subsection (f) of this section if the commission finds that the expenditures and the associated
rate requirements are just, reasonable, not contrary to the public interest, and will allow for
the provision and maintenance of adequate, efficient, safe, reliable and reasonably priced
middle-mile fiber broadband service.
(i) The council or the commission may not act to limit the number of last-mile broadband
Internet providers eligible to be contracted to utilize the middle-mile fiber infrastructure
constructed as part of a project proposed pursuant to this section. No board, commission,
agency, or other governmental body may regulate the costs extended to a broadband
customer from any last-mile broadband Internet service provider. Nothing in this subsection
shall prevent the commission from reviewing, modifying, and approving or denying the cost
or means of providing a middle-mile fiber proposed project pursuant to this esection.
(j) Upon commission approval, an electric utility will be authorized to imrplement the plan
and to recover related project costs, net of any middle-mile broadband revenues or
contributions in aid of construction, as provided in the following:
(1) An allowance for return shall be calculated by applying at rate of return to the planned
net incremental increase to rate base attributable to the project for the coming year,
considering the projected amount and timing of expenditures under the project, plus any
expenditures in previous years of the project. The rate of return shall be determined by
utilizing the rate of return on equity authorized by the commission in the electric utility's
most recent rate case proceeding or in the casse of a settled rate case, a rate of return on
equity as determined by the commission, and the projected cost of the electric utility's debt
during the period of the project to determine the weighted cost of capital based upon the
electric utility's capital structure. g
(2) Income taxes applicable toe the return allowed on the project shall be calculated for
inclusion in rates at the federal and state statutory rates.
(3) Depreciation and property tax expenses directly attributable to the project shall be
estimated for the upcoming year.
(4) Operation and maintenance expense specifically and directly related to operation and
maintenance of the middle-mile fiber broadband facilities.
(5) Following commission approval of the project and related cost recovery mechanism, an
electric utility shall place into effect a commission approved reconcilable rate surcharge that
recovers the revenue requirement of the allowance for return, related income taxes,
operation and maintenance expenses, depreciation, property tax expenses associated with
the electric utility's estimated project investments for the upcoming year, net of middle-mile
revenue or contributions in aid of construction recovery of those costs provided by last mile
broadband Internet providers upon completion of the project, if any ("middle-mile cost
recovery rates"). In each year subsequent to the order approving the project and middle-mile
cost recovery rates, the electric utility shall file a petition with the commission setting forth
new proposed middle-mile cost recovery rates that recover the revenue requirement of the
project investments previously installed and projected costs of the project based on
investments to be made in the subsequent year, plus any under-recovery or minus any over-
recovery of actual costs attributable to the project, for the preceding year.
(k) The electric utility may make any accounting accruals necessary to establish a regulatory
asset or liability through which actual costs incurred and costs recovered through the rate
mechanism are tracked.
(l) Construction, installation, operation, maintenance, and repair of middle-mile fiber
expansion projects. Subject to continuing authority of the commission to determine the
reasonableness of acts and practices, for all projects contained in a written eplan approved by
the commission pursuant to subsection (e) of this section, and constructed, installed,
operated, maintained, and repaired by an electric utility pursuant to thris section, the electric
utility shall have control of the scope, scheduling and execution of the project to construct,
install, operate, maintain and repair middle-mile fiber assets, including fiber build route
selection and build and splice schedules. The electric utility shall be entitled to reestablish
electric service and assure safety of its workers prior to resttoration of middle-mile fiber
broadband service in order to ensure operational safety matters of the shared infrastructure.
Additionally, the electric utility shall be entitled to use contractors chosen and approved by
the electric utility to construct, install, operate, maintain, and repair middle-mile fiber assets
pursuant to this section because of its or electric utility's knowledge of hazards in the power
supply zone and the associated controls to reduce the risks involved. Nothing in this section
confers any rights to work in the power supply space except by the electric utility and its
designated contractors.
(m) Attachment and connection of middle-mile fiber assets. An electric utility participating in
the program shall have sole coentrol of the location and method of attachment and connection
of middle-mile fiber assets to the electric utility's distribution infrastructure, unless
otherwise ordered by thLe commission.
(n) Management of fiber projects. In order to manage operations, an electric utility
participating in the program shall manage and document the entities that lease middle-mile
fiber assets for last-mile operations, including, but not limited to, outage notification and
management.
(o) Notwithstanding anything in this code or in the articles of incorporation of an electric
utility to the contrary, an electric utility may, either directly or indirectly or through an
affiliate or subsidiary, pursuant to a written plan approved by the commission:
(1) Own, manage or control any broadband capacity, number of fiber strands, equipment and
electronics, including any plant, works, system, lines, facilities or properties, or any part or
parts thereof, together with all appurtenances thereto, used or useful in connection with the
provisions and extension of such broadband services;
(2) Lease such broadband capacity, number of fiber strands, equipment, or electronics to
non-governmental Internet service providers and other third parties, on a nonexclusive
basis; and
(3) Provide access points that are outside the electric utility's power supply zone to allow
connection between the electric utility's broadband capacity system or fiber strands, and any
non-governmental Internet service provider's or other third party's system.‹ Prev All West Virginia sections Next ›
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