West Virginia 2018 Regular Session Status: Passed House Of Delegates 4 R cosponsors

HB 4357 — West Virginia Small Wireless Facilities Deployment Act

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  1. ✓
    Introduced
  2. ✓
    In Committee
  3. 3
    Passed House of Delegates
  4. 4
    Passed Senate
  5. 5
    To Executive
  6. 6
    Enacted

This bill died with 2018 Regular Session. It reached “Passed House of Delegates” and never advanced before the session ended, so it can no longer move — a new version would have to be reintroduced in the current session.

This bill is no longer active — its legislative session has ended, so there is no live prognosis. It would have to be reintroduced in the current session to move again.

Bill Text

What changed in the latest version

435 added · 340 removed

Plain-language change summary

The revised bill, HB 4357, has clarified and specified the guidelines around the installation of small wireless facilities in West Virginia. Key changes include defining the state's authority to regulate collocation and limiting fees that local governments can charge. This is important because it streamlines the process for deploying advanced wireless networks, which are essential for economic growth and improving internet access across the state.

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NEWS RELEASES HELPFUL LINKS Introduced Version « House Bill 4357 History OTHER VERSIONS  —  Committee Substitute  |   |  Email Key:
NEWS RELEASES HELPFUL LINKS Committee Substitute « House Bill 4357 History OTHER VERSIONS  —  Introduced Version  |   |  Email Key:
Red = new code to be enacted WEST virginia Legislature regular session Introduced House Bill 4357 By Delegates Shott, Hanshaw, Boggs, Capito, Foster, Moore, Queen, Barrett, Byrd, Harshbarger and Nelson [Introduced January 30, 2018;
Red = new code to be enacted WEST virginia legislature regular session Committee Substitute for House Bill 4357 By Delegates Shott, Hanshaw, Boggs, Capito, Foster, Moore, Queen, Barrett, Byrd, Harshbarger and Nelson [Originating in the Committee on Finance;
Referred to the Committee on the Judiciary then Finance.] A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §31H-1-1, §31H-1-2, §31H-2-1, §31H-2-2, §31H-2-3, and §31H-2-4, all relating to the establishment of the West Virginia Small Wireless Facilities Deployment Act;
February 23, 2018]  A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §31H-1-1, §31H-1-2, §31H-2-1, §31H-2-2, §31H-2-3, and §31H-2-4, all relating to the establishment of the West Virginia Small Wireless Facilities Deployment Act;
providing for certain permit requirements;
providing and limiting state and local government authority to prohibit, regulate or charge for collocation;
requiring permits to be issued on a nondiscriminatory basis;
authorizing and limiting activities and equipment of providers;
excluding micro wireless facilities from regulation;
authorizing and limiting permits for activities;
and providing for certain local zoning, indemnification, insurance, and bonding requirements.
authorizing and limiting access to collocation sites, structures and equipment;
authorizing and limiting agreements between authority and provider;
and providing for certain local zoning, indemnification, insurance, bonding and other forms of surety requirements.
(d) Small wireless facilities, including facilities commonly referred to as small cells and distributed antenna systems, often may be deployed most effectively in the public right-of-way.
(d) Small wireless facilities, including facilities commonly referred to as small cells and distributed antenna systems, often may be deployed most effectively in public rights-of-way.
(e) To meet the key objectives of this chapter, wireless providers must have access to certain public right-of-way and the ability to attach or collocate on existing infrastructure that will permit these providers to offer next generation wireless and broadband technology.
(e) To meet the key objectives of this chapter, wireless providers must have access to certain public rights-of-way and the ability to attach or collocate on existing infrastructure that will permit these providers to offer next generation wireless and broadband technology.
“Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
(1) “Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services;
“Applicable codes” means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes, including the National Electric Safety Code.
(2) “Applicable codes” means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes, including the National Electric Safety Code;
“Applicant” means any person who submits an application and is a wireless provider.
(3) “Applicant” means any person who submits an application and is a wireless provider;
“Application” means a request submitted by an applicant to an authority for a permit to collocate small wireless facilities or to approve the installation, modification or replacement of a utility pole or wireless support structure.
(4) “Application” means a request submitted by an applicant to an authority for a permit to collocate small wireless facilities or to approve the installation, modification or replacement of a utility pole or wireless support structure;
“Authority” means the State of West Virginia or a political subdivision that has jurisdiction and control for use of public right-of-way as provided by this code for placements within public right-of-way or has zoning or land use control for placements not within public right-of-way.
(5) “Authority” means the State of West Virginia or a political subdivision that has jurisdiction and control for use of public rights-of-way as provided by this code for placements within public rights-of-way or has zoning or land use control for placements not within public rights-of-way;
“Authority utility pole” means a utility pole owned or operated by an authority in public right-of-way.
(6) “Authority utility pole” means a utility pole owned or operated by an authority in a public right-of-way;
“Collocate” or “collocation” means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole.
(7) “Collocate” or “collocation” means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole;
“Commissioner” means the Commissioner of the West Virginia Division of Highways.
(8) “Commissioner” means the Commissioner of the West Virginia Division of Highways;
“Communications service” means cable service, as defined in 47 U.S.C.
(9) “Communications service” means cable service, as defined in 47 U.S.C.
or wireless service other than mobile service.
or wireless service other than mobile service;
“Communications service provider” means a cable operator, as defined in 47 U.S.C.
(10) “Communications service provider” means a cable operator, as defined in 47 U.S.C.
or a wireless provider.
or a wireless provider;
“Division” means the West Virginia Division of Highways.
(11) “Decorative pole” means an authority utility pole that is specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than a small wireless facility, or specially designed informational, or directional signage, or temporary holiday or special event attachments, have been placed, or are permitted to be placed, according to nondiscriminatory municipal rules or codes;
“FCC” means the Federal Communications Commission of the United States.
(12) “Division” means the West Virginia Division of Highways;
“Fee” means a one-time, nonrecurring charge.
(13) “FCC” means the Federal Communications Commission of the United States;
“Law” means a federal or state statute, common law, code, rule, regulation, order, or local ordinance or resolution.
(14) “Fee” means a one-time, nonrecurring charge;
“Micro wireless facility” means a small wireless facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, no longer than 11 inches.
(15) “Historic District” means a group of buildings, properties, or sites that are either listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register, the individual who has been delegated the authority by the federal agency to list properties and determine their eligibility for the National Register, in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic Agreement codified at 47 C.F.R.
“Permit” means a written authorization required by an authority to perform an action or initiate, continue, or complete a project.
Part 1, Appendix C;
“Person” means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including an authority.
(16) “Law” means a federal or state statute, common law, code, rule, regulation, order, or a local ordinance or resolution;
“Rate” means a recurring charge.
(17) “Micro wireless facility” means a small wireless facility that is not larger in dimension than inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, that is no longer than 11 inches;
“Right-of-way” means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, utility easement, or similar property, but not including a federal interstate highway.
(18) “Permit” means a written authorization required by an authority to perform an action or initiate, continue, or complete a project;
“Small wireless facility” means a wireless facility that meets both of the following qualifications:
(19) “Person” means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including an authority;
(A) Each antenna could fit within an imaginary enclosure of no more than 6 cubic feet;
(20) “Rate” means a recurring charge;
(21) “Right-of-way” means the area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property, but not including a federal interstate highway;
(22) “Small wireless facility” means a wireless facility that meets both of the following qualifications:
(A) each antenna could fit within an imaginary enclosure of no more than 6 cubic feet;
electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.
electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and communications services;
“Utility pole” means a pole or similar structure that is or may be used, in whole or in part, by a communication services provider or for electric distribution, lighting, traffic control, signage, or a similar function, or for the collocation of small wireless facilities.
(23) “Utility pole” means a pole or similar structure that is or may be used, in whole or in part, by a communication services provider or for electric distribution, lighting, traffic control, signage (if the pole is fifteen feet or taller), or a similar function, or for the collocation of small wireless facilities.
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However, “utility pole” does not include Wireless Support Structures or electric transmission structures.
However, “utility pole” does not include wireless support structures or electric transmission structures;
“Wireless facility” means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including:
(24) “Wireless facility” means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including:
(A) Equipment associated with wireless communications;
(A) equipment associated with wireless communications;
(A) The structure or improvements on, under, or within which the equipment is collocated;
(A) the structure or improvements on, under, or within which the equipment is collocated;
or (B) wireline backhaul facilities, coaxial or fiber optic cable that is between wireless support structures or utility poles or coaxial, or fiber optic cable that is otherwise not immediately adjacent to or directly associated with an antenna.
or (B) wireline backhaul facilities, coaxial or fiber optic cable that is between wireless support structures or utility poles or coaxial, or fiber optic cable that is otherwise not immediately adjacent to or directly associated with an antenna;
“Wireless infrastructure provider” means any person, including a person authorized to provide telecommunications service in the state, that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles, but that is not a wireless services provider.
(25) “Wireless infrastructure provider” means any person, including a person authorized to provide telecommunications service in the state, that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles, but that is not a wireless services provider;
“Wireless provider” means a wireless infrastructure provider or a wireless services provider.
(26) “Wireless provider” means a wireless infrastructure provider or a wireless services provider;
“Wireless services” means any services, whether at a fixed location or mobile location, provided to the public using wireless facilities.
(27) “Wireless services” means any services, using licensed or unlicensed spectrum, including the use of WiFi, whether at a fixed location or mobile location, provided to the public using wireless facilities;
“Wireless services provider” means a person who provides wireless services.
(28) “Wireless services provider” means a person who provides wireless services;
“Wireless support structure” means a freestanding structure, such as a monopole;
and (29) “Wireless support structure” means a structure, such as a monopole;
(30) “Wireline backhaul facility” is a facility used for the transport of communications service or any other electronic communications by coaxial, fiber-optic cable, or any other wire.
ACCESS TO PUBLIC RIGHT-OF-WAY.
ACCESS TO PUBLIC RIGHTS-OF-WAY.
§31H-2-1.  Use of right-of-way for small wireless facilities and utility poles.
§31H-2-1.  Use of rights-of-way for small wireless facilities and utility poles;
(a) Except as provided for in this article, an authority may not prohibit, regulate, or charge fees for the collocation of small wireless facilities.
other structures.
(b) An authority may not enter into an exclusive arrangement with any person for use of the right-of-way for the collocation of small wireless facilities or the installation, operation, marketing, modification, maintenance, or replacement of utility poles.
(a) The provisions of this section shall only apply to activities of a wireless provider within the right-of-way.
(c) An authority may only charge a wireless provider a rate or fee for the use of the right- of-way with respect to the collocation of small wireless facilities or the installation, maintenance, modification, operation, or replacement of a utility pole in the right-of-way, if the authority charges other entities for use of the right-of-way.
(b) Except as provided in this chapter, an authority may not prohibit, regulate, or charge for the collocation of small wireless facilities.
Notwithstanding any provision of this article to the contrary, an authority is permitted, on a nondiscriminatory basis, to refrain from charging any rate to a wireless provider for the use of the right-of-way.
(c) An authority may not enter into an exclusive arrangement with any person for use of the right-of-way for the collocation of small wireless facilities or the installation, operation, marketing, modification, maintenance, or replacement of utility poles.
(d) Subject to the provisions of this section, a wireless provider has the right, as a permitted use not subject to zoning review or approval, to collocate small wireless facilities and install, maintain, modify, operate and replace utility poles along, across, upon, and under the right-of-way.
(d) An authority may only charge a wireless provider a rate or fee for the use of the right- of-way with respect to the collocation of small wireless facilities or the installation, maintenance, modification, operation, or replacement of a utility pole in the right-of-way, if the authority charges other entities for use of the right-of-way.
Such structures and facilities shall be so installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by utilities.
Notwithstanding any provision of this article to the contrary, an authority is permitted, on a nondiscriminatory basis, to refrain from charging any rate to a wireless provider for the use of the right-of-way.  The rate for occupancy and use of the right of way may not exceed $25 per year per small wireless facility.
(e) Each new or modified utility pole installed in the right-of-way may not exceed the greater of (1) Ten feet in height above the tallest existing utility pole in place as of the effective date of this chapter located within 500 feet of the new pole in the same right-of-way;
An authority may adjust this rate ten percent every five years, rounded to the nearest five dollars.
(e) Subject to the provisions of this section, a wireless provider has the right, as a permitted use not subject to zoning review or approval, to collocate small wireless facilities and install, maintain, modify, operate and replace its own utility poles along, across, upon, and under the right-of-way.
Such structures and facilities shall be so installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or to obstruct the legal use of such right-of-way by utilities.
(f) Each new or modified utility pole installed by a wireless services provider in the right-of-way may not exceed the greater of (1) ten feet in height above the tallest existing utility pole in place as of the effective date of this chapter located within 500 feet of the new pole in the same right-of-way;
Subject to the provisions of this article, a wireless provider has the right to collocate a small wireless facility and install, maintain, modify, operate and replace a utility pole that exceeds these height limits along, across, upon and under the right-of-way, subject to applicable zoning regulations.
Subject to the provisions of this article, a wireless provider has the right to collocate a small wireless facility and install, maintain, modify, operate and replace its own utility pole that exceeds these height limits along, across, upon and under the right-of-way, subject to applicable zoning regulations.
(f) A wireless provider is permitted to replace decorative poles when necessary to collocate a small wireless facility, but any replacement pole shall reasonably conform to the design aesthetics of the decorative poles being replaced.
(g) An authority may adopt reasonable written design guidelines with objective, technically feasible criteria that reasonably match the aesthetics and character of an immediate area regarding all of the following:
(g) A wireless provider shall comply with reasonable and nondiscriminatory requirements that prohibit communications service providers from installing structures in the right-of-way in an area designated solely for underground or buried cable and utility facilities where:
(1) The location of any ground-mounted small wireless facilities;
(1) The authority has required all cable and utility facilities other than authority poles and attachments to be placed underground by a date certain that is three months prior to the submission of the application;
(2) The location of a small wireless facility on a utility pole or wireless support structure;
(2) the authority does not prohibit the replacement of authority poles in the designated area;
(3) The appearance and concealment of small wireless facilities, including those relating to materials used for arranging, screening, or landscaping;
and (4) The design and appearance of a utility pole or wireless support structure.
Any such guidelines shall be applied in a nondiscriminatory manner.
Materials utilized to comply with the appearance and concealment criteria established in the guidelines shall not be considered part of the small wireless facility for purposes of facility size restrictions in this chapter.
Each new or modified small wireless facility or utility pole installed in the right of way shall comply with an authority’s current design guidelines.
(h) A wireless provider is permitted to replace its own decorative poles when necessary to collocate a small wireless facility, but any replacement pole shall reasonably conform to the design aesthetics of the decorative poles being replaced.
(i) A wireless provider shall comply with reasonable and nondiscriminatory requirements that prohibit communications service providers from installing structures in the right-of-way in an area designated solely for underground or buried cable and utility facilities where:
(1) The authority has required all cable and utility facilities other than authority utility poles and attachments to be placed underground by a date certain that is three months prior to the submission of the application;
(2) the authority does not prohibit the replacement of authority utility poles in the designated area;
(h) Subject to the provisions of this section, and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R.
(j) Subject to the provisions of this section, and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R.
(i) The authority, in the exercise of its administration and regulation related to the management of the right-of-way, must be competitively neutral with regard to other users of the right-of-way, including that terms may not be unreasonable or discriminatory and may not violate any applicable law.
(k) The authority, in the exercise of its administration and regulation related to the management of the right-of-way, must be competitively neutral with regard to other wireless service providers who are users of the right-of-way, including that terms may not be unreasonable or discriminatory and may not violate any applicable law.
(j) The authority may require a wireless provider to repair all damage to the right-of-way directly caused by the activities of the wireless provider in the right-of-way and to return the right-of-way to its functional equivalence before the damage pursuant to the competitively neutral, reasonable requirements and specifications of the authority.
(l) The authority may require a wireless provider to repair all damage to the right-of-way directly caused by the activities of the wireless provider in the right-of-way and to return the right-of-way to its functional equivalence before the damage, as determined by the authority, pursuant to the competitively neutral, reasonable requirements and specifications of the authority.
If the wireless provider fails to make the repairs required by the authority within a reasonable time after written notice, the authority may affect those repairs and charge the applicable party the reasonable, documented cost of such repairs.
If the wireless provider fails to make the repairs required by the authority within a reasonable time after written notice, the authority may effect those repairs and charge the applicable party the reasonable, documented cost of such repairs.
(k) Nothing in this chapter shall be deemed to impose or otherwise affect any rights, controls, tariffs, or contractual obligations that may be established with regard to the utility poles, similar structures, or equipment of any type that are owned or controlled by an investor-owned electric utility whose rates are regulated by the public service commission of West Virginia or any such utility’s affiliates, or by an independent transmission company.
(a) Small wireless facilities shall be classified as permitted uses and not subject to zoning review or approval.
(a) The provisions of this section shall apply to the permitting of small wireless facilities by a wireless provider in or outside the right-of-way as specified in subsection (b) of this section and to the permitting of the installation, modification, and replacement of utility poles by a wireless provider inside the right-of-way.
(b) An authority may require an applicant to obtain one or more permits to collocate a small wireless facility, provided that the permits are of general applicability.
(b) Small wireless facilities that meet the requirements of §31H-2-1(f) through (j) shall be classified as permitted uses and not subject to zoning review or approval if they are collocated (1) in the right-of-way in any zone or (2) outside the right-of-way in property not zoned exclusively for single family residential use.
(c) An authority may require an applicant to obtain one or more permits to collocate a small wireless facility that meets the requirements of §31H-2-1(f) through (j) or to install, modify or replace a utility pole that meets the requirements of §31H-2-1(f) through (j) and is associated with a small wireless facility, provided that the permits are of general applicability.
(1) An authority may not directly or indirectly require an applicant to perform services unrelated to the collocation for which approval is sought, such as in-kind contributions to the authority, including reserving fiber, conduit, or pole space for the authority on the wireless provider's utility pole.
(1) An authority may not directly or indirectly require an applicant to perform services unrelated to the collocation for which approval is sought, such as in-kind contributions to the authority, including reserving fiber, conduit, or pole space for the authority on the wireless provider's utility pole;
(2) An applicant may not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the criteria set forth in this subsection.
(2) An applicant may not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the criteria set forth in this subsection;
(3) An authority may not require the placement of small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole.
(3) An authority may not require the placement of small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole;
(4) An authority may not limit the placement of small wireless facilities by minimum separation distances.
(4) An authority may not limit the placement of small wireless facilities by minimum separation distances;
(5) An authority may require an applicant to include an attestation that the small wireless facilities will be operational for use by a wireless services provider within one year after the permit issuance date, unless the authority and the applicant agree to extend this period or delay is caused by lack of commercial power or communications transport facilities to the site.
(5) An authority may require an applicant to include an attestation that the small wireless facilities will be operational for use by a wireless services provider within one year after the permit issuance date, unless the authority and the applicant agree to extend this period or delay is caused by lack of commercial power or communications transport facilities to the site;
That processing deadline also may be tolled by agreement of the applicant and the authority.
That processing deadline also may be tolled by agreement of the applicant and the authority;
(7) An application shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within 60 days of receipt of the application.
(7) An application shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within 60 days of receipt of the application for a collocation of a small wireless facility and 90 days for an application for the installation, modification or replacement of a utility pole in the right-of-way;
(A) Materially interferes with the safe operation of traffic control equipment.
(A) Materially interferes with the safe operation of traffic control equipment;
(B) Materially interferes with sight lines or clear zones for transportation or pedestrians.
(B) Materially interferes with sight lines or clear zones for transportation or pedestrians;
(C) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement.
(C) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement;
Such spacing requirements may not prevent a wireless provider from serving any location.
Such spacing requirements may not prevent a wireless provider from serving any location;
(E) Fails to comply with applicable codes.
(E) Fails to comply with applicable codes and generally applicable standards that are consistent with this chapter and adopted by an authority for construction and public safety in the rights-of-way, including reasonable and nondiscriminatory wiring and cabling requirements, grounding requirements, and abandonment and removal provisions;
(F) Fails to comply with applicable design guidelines adopted under §31H-2-1(f) of this code;
or (G) Fails to attest that a small wireless facility will comply with relevant Federal Communications Commission regulations concerning (i) radiofrequency emissions from radio transmitters and (ii) unacceptable interference with public safety spectrum, including compliance with the abatement and resolution procedures for interference with public safety spectrum established by the FCC set forth in 47 CFR 22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675.
Any subsequent review shall be limited to the deficiencies cited in the denial.
Any subsequent review shall be limited to the deficiencies cited in the denial;
Provided, That, the denial of one or more small wireless facilities in a consolidated application may not delay processing of any other small wireless facilities in the same batch.
the denial of one or more small wireless facilities in a consolidated application may not delay processing of any other small wireless facilities in the same batch;
(a) Undertake the installation or collocation;
(A) Undertake the installation or collocation;
and (b) Subject to applicable relocation requirements and the applicant’s right to terminate at any time, operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of not less than 10 years, which must be renewed for equivalent durations so long as they are in compliance with the criteria set forth in this subsection.
and (B) Subject to applicable relocation requirements and the applicant’s right to terminate at any time, operate and maintain the small wireless facilities and any associated utility pole installed by the wireless services provider covered by the permit for a period of not less than 10 years, which must be renewed for equivalent durations so long as they are in compliance with the criteria set forth in this subsection;
(12) An authority may not institute, either expressly or de facto, a moratorium on filing, receiving, or processing applications or issuing permits or other approvals, if any, for the collocation of small wireless facilities or the installation, modification, or replacement of utility poles to support small wireless facilities.
and (12) An authority may not institute, either expressly or de facto, a moratorium on filing, receiving, or processing applications or issuing permits or other approvals, if any, for the collocation of small wireless facilities or the installation, modification, or replacement of utility poles to support small wireless facilities.
(1) Routine maintenance;
(1) routine maintenance;
§31H-2-3.  Access to authority poles within the right-of-way;
§31H-2-3.  Access to authority utility poles;
application and permit fees for small wireless facilities.
application and permit fees and rates for small wireless facilities.
(a) An authority shall allow the collocation of small wireless facilities on authority utility poles subject to the following:
(a) An authority shall allow the collocation of small wireless facilities on authority utility poles within the right-of-way subject to the following:
(1) An authority may not enter into an exclusive arrangement with any person for the right to attach small wireless facilities to authority utility poles.
(1) An authority may not enter into an exclusive arrangement with any person for the right to attach small wireless facilities to authority utility poles;
(2) The rates and fees for collocations on authority utility poles shall be nondiscriminatory regardless of the services provided by the collocating person.
(2) The rates and fees for collocations on authority utility poles shall be nondiscriminatory regardless of the services provided by the collocating person;
(3) An authority may charge an annual recurring rate to collocate a small wireless facility on an authority utility pole that equals the lessor of (A) $20 per year or (B) the actual direct, and reasonable costs related to the wireless provider's use of space on the authority utility pole.
(3) An authority may charge an annual recurring rate to collocate a small wireless facility on an authority utility pole that equals $30 per year.
In any controversy concerning the appropriateness of a cost-based rate for an authority utility pole, the authority has the burden of proving that the rate does not exceed the actual, direct, and reasonable costs for the applicant's proposed use of the pole.
An authority may adjust this rate ten percent every five years, rounded to the nearest five dollars.
Nothing in this paragraph, and (3) prohibits a wireless provider and an authority from mutually agreeing to an annual recurring rate of less than $20 to collocate a small wireless facility on an authority utility pole.
Nothing in this subdivision prohibits a wireless provider and an authority from mutually agreeing to an annual recurring rate of less than $30 to collocate a small wireless facility on an authority utility pole;
(4) The rate for occupancy of the right-of-way may not exceed $20 per year per small wireless facility.
(4) The rates, fees, and terms must be nondiscriminatory, competitively neutral, and commercially reasonable and must comply with this section;
(5) The rates, fees, and terms must be nondiscriminatory, competitively neutral, and commercially reasonable and must comply with this section.
(5) An authority shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation by a wireless provider, including pole replacement if necessary, within 60 days after receipt of a complete application.
(6)  An authority shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation by a wireless provider, including pole replacement if necessary, within 60 days after receipt of a complete application.
An authority may require replacement of the authority pole only if it demonstrates that the collocation would make the authority pole structurally unsound.
An authority may require replacement of the authority utility pole only if it demonstrates that the collocation would make the authority utility pole structurally unsound;
(7) The person owning, managing, or controlling the authority pole may not require more make-ready work than required to meet applicable codes or industry standards.
and (6) The person owning, managing, or controlling the authority utility pole may not require more make-ready work than is required to meet applicable codes or industry standards.
Fees for make-ready work including any pole replacement may not exceed actual costs or the amount charged to other communications service providers for similar work and may not include any consultant fee or expense.
Fees for make-ready work including any pole replacement may not exceed the actual costs or the amount charged to other communications service providers for similar work and may not include any consultant fee or expense.
(1) An authority may not require a wireless provider to pay any rates, fees, or compensation to the authority or other person other than what is expressly authorized by this chapter for the right to use or occupy a right of way, for collocation of small wireless facilities on utility poles in the right-of-way, or for the installation, maintenance, modification, operation and replacement of utility poles in the right-of-way.
(1) An authority may not require a wireless provider to pay any rates, fees, or compensation to the authority or other person other than what is expressly authorized by this chapter;
(2) An authority may charge an application fee only if the fee is required for similar types of commercial development within the authority's jurisdiction.
(2) An authority may charge an application fee for collocation of small wireless facilities on an existing utility pole not to exceed $200 each for the first five small wireless facilities in the same application and $100 for each additional small wireless facility in the same application.
(3) Where costs to be recovered by an application fee are already recovered by existing fees, rates, licenses or taxes paid by a wireless provider, no application fee shall be assessed.
An authority may adjust this fee ten percent every five years, rounded to the nearest five dollars;
(4) An application fee may not include:
(3) An authority may charge an application fee for the installation, modification or replacement of a utility pole, and the collocation of an associated small wireless facility that are permitted uses in accordance with the specifications in this chapter may not exceed $250 per pole for access to the right-of-way.
(A) Travel expenses incurred by a third party in its review of an application;
An authority may adjust this fee ten percent every five years, rounded to the nearest five dollars;
or (B) direct payment or reimbursement of third party rates or fees charged on a contingency basis or a result-based arrangement.
and (4) An authority may charge an application fee for the installation, modification or replacement of a utility pole and the collocation of an associated small wireless facility that is not a permitted use in accordance with the specifications in this chapter not to exceed $1,000.
(5) An application fee for a collocation shall be limited to the cost of granting a building permit for similar types of commercial development or construction within the authority’s jurisdiction.  The fees for collocation of small wireless facilities on an existing or replacement authority pole may not exceed $100 each for the first five small wireless facilities on the same application and $50 for each additional small wireless facility on the same application.
An authority may adjust this fee ten percent every five years, rounded to the nearest five dollars.
(6) The fees for the installation, modification or replacement of a utility pole and the collocation of an associated small wireless facility that are permitted uses in accordance with the specifications in this chapter may not exceed $250 per pole for access to the right-of-way.
(7) An application fee for the installation, modification or replacement of a new wireless support structure, a substantial modification, or a new utility pole associated with a small wireless facility that is not a permitted use in accordance with the specifications in this chapter may not exceed $1,000.
(b) Subject to the provisions of this chapter and applicable federal law, an authority may continue to exercise zoning, land use, planning and permitting authority within its territorial boundaries, including with respect to wireless support structures and utility poles;
The permitting procedures and authorizations set forth in this chapter apply only to the placement of small wireless facilities and utility poles, and do not authorize the installation or operation of a wireline backhaul facility.
except that no authority shall have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility not owned or controlled by the authority, other than to comply with applicable codes, and an authority shall evaluate the structure classification for wireless support structures under the latest version of ANSI/TIA-222.
(b) Subject to the provisions of this chapter and applicable federal law, an authority may continue to exercise zoning, land use, planning and permitting authority within its territorial boundaries with respect to wireless support structures and utility poles;
no authority shall have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility not owned or controlled by the authority, other than to comply with applicable codes;
and an authority shall evaluate the structure classification for wireless support structures under the latest version of ANSI/TIA-222.
(d) An authority may not require a wireless provider to indemnify and hold the authority and its officers and employees harmless against any claims, lawsuits, judgments, costs, liens, losses, expenses or fees, except when a court of competent jurisdiction has found that the negligence of the wireless provider while installing, repairing, or maintaining caused the harm that created such claims, lawsuits, judgments, costs, liens, losses, expenses, or fees.
(d) An agreement or ordinance that does not fully comply with this chapter may apply only to small wireless facilities and utility poles that became operational or were installed before the effective date of this chapter.
(e) An authority may require a wireless provider to have in effect insurance coverage consistent with the provisions of this section;
Such an agreement or ordinance may not be renewed, or extended, unless it is modified to fully comply with this chapter.
Provided, That the authority imposes similar requirements on other users of the right of way and such requirements are reasonable and nondiscriminatory.
An agreement or ordinance that applies to small wireless facilities and utility poles that became operational or were constructed before the effective date of this chapter is invalid and unenforceable beginning on the 181st day after the effective date of this chapter unless it fully complies with this chapter.
An authority may not require a wireless provider to obtain insurance naming the authority or its officers and employees an additional insured.
If an agreement or ordinance is invalid in accordance with this subsection (d), in the absence of an agreement or ordinance that fully complies with this chapter and until such a compliant agreement or ordinance is entered or adopted, small wireless facilities and utility poles that become operational or were constructed before the effective date of this chapter may remain installed and be operated under the requirements of this chapter.
An authority may require a wireless provider to furnish proof of insurance, if required, prior to the effective date of any permit issued for a small wireless facility.
(e)  An agreement or ordinance that applies to small wireless facilities and utility poles that become operational on or after the effective date of this chapter is invalid and unenforceable beginning on the effective date of this chapter unless it fully complies with this chapter.
(f) An authority may adopt bonding requirements for small wireless facilities;
If an agreement or ordinance is invalid in accordance with this subsection (e), in the absence of an agreement or ordinance that fully complies with this chapter and until such a compliant agreement or ordinance is entered or adopted, small wireless facilities and utility poles may be installed and operated in the right of way or become operational under the requirements of this chapter.
Provided, That the authority imposes similar requirements on other users of the right-of-way and such bonding requirements are reasonable and nondiscriminatory.
(f) Any wireless provider who owns or operates small wireless facilities or utility poles in the right-of-way shall indemnify, protect, defend, and hold the authority and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the wireless provider who owns or operates small wireless facilities or utility poles in the right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the wireless provider, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in right-of-way.
The purpose of such bonds shall be to  provide for the removal of abandoned or improperly maintained small wireless facilities, including those that an authority determines need to be removed to protect public health, safety, or welfare, restoration of the right-of-way, or to recoup rates or fees that have not been paid by a wireless provider in over 12 months, so long as the wireless provider has received reasonable notice from the authority of any of the noncompliance listed above and an opportunity to cure.  Bonding requirements may not exceed $200 per small wireless facility.
(g) Except for a wireless provider with an existing franchise to occupy and operate in the rights-of-way, during the period in which the wireless provider's facilities are located on the authority improvements or rights-of-way, the authority may require the wireless provider to carry, at the wireless provider's own cost and expense, the following insurance:
For wireless providers with multiple small wireless facilities within the jurisdiction of a single authority, the total bond amount across all facilities may not exceed $10,000, which amount may be combined into one bond instrument.
(i) property insurance for its property's replacement cost against all risks;
  NOTE:
(ii) workers' compensation insurance, as required by law;
The purpose of this to establish the West Virginia Small Wireless Facilities Deployment Act.
or (iii) commercial general liability insurance with respect to its activities on the authority improvements or rights-of-way to afford minimum protection limits consistent with its requirements of other users of authority improvements or rights-of-way, including coverage for bodily injury and property damage.
The bill makes legislative findings.
An authority may require a wireless provider to include the authority as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the authority in a commercial general liability policy as reasonably required by the authority.
The bill defines terms.
A wireless provider may self-insure all or a portion of the insurance coverage and limit requirements required by an authority.
The bill provides for access to public right-of-way for the collocation of small wireless facilities.
A wireless provider that self-insures is not required, to the extent of the self-insurance, to comply with the requirement for the naming of additional insureds under this section.
The bill provides for certain permit requirements.
A wireless provider that elects to self-insure shall provide to the authority evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limits required by the authority.
The bill requires permits to be issued on a nondiscriminatory basis.
(h) An authority may impose reasonable and nondiscriminatory requirements for bonds, escrow deposits, letters of credit, or any other type of financial surety to ensure removal of abandoned or unused wireless facilities or damage to the right-of-way or authority property caused by the wireless provider or its agent.
The bill provides for the collection of fees and setting the amount of fees.
The bill provides for certain local zoning, indemnification, insurance, and bonding requirements.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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Action History

  1. To Government Organization

  2. To Government Organization

  3. Introduced in Senate

  4. House Message received

  5. Communicated to Senate

  6. Title amendment adopted (Voice vote)

  7. Passed House (Roll No. 250)

  8. Read 3rd time

  9. On 3rd reading, Special Calendar

  10. Read 2nd time

  11. On 2nd reading, Special Calendar

  12. Read 1st time

  13. On 1st reading, Special Calendar

  14. By substitute, do pass

  15. To House Finance

  16. With amendment, do pass, but first to Finance

  17. To House Judiciary

  18. Introduced in House

  19. To Judiciary then Finance

  20. Filed for introduction

Sponsors

  • Harshbarger · Cosponsor
  • Byrd · Cosponsor
  • Capito · Cosponsor
  • Ben Queen · Cosponsor
  • Boggs · Cosponsor
  • Roger Hanshaw · Cosponsor
  • Shott · Primary
  • Jason Barrett · Cosponsor
  • Foster · Cosponsor
  • Nelson · Cosponsor
  • Erica Moore · Cosponsor

Sponsorship breakdown

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1 sponsors · 10 co-sponsors · 141 not signed on · 1 voted No

Sponsors (1)

  • Shott

Co-sponsors (10)

Not signed on (141)

141 members have not signed on to this bill.

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"Not signed on" means a member has not sponsored or co-sponsored this bill — it does not imply opposition. Members flagged Voted No have a recorded No vote on this bill.

Whip count is in markup. Polling the chamber and every recorded vote this session. Only the first open is slow. It’s instant for you after this. Calling the roll · Tallying · Engrossing

Votes

PASSAGE

Passed 97 Yea · 2 Nay · 1 Other
Party YeaNayPresentNot Voting
Unaffiliated 68101
Republican 25100
Democrat 4000
Total 97201
% of votes cast 97%2%0%1%
How each member voted (100)
Member Party Vote
Atkinson — Yea
Deem — Not Voting
Ferro — Yea
Folk — Yea
Love — Yea
Lovejoy — Nay
Marcum — Yea
Rowan — Yea
Lane — Yea
Romine, C. — Yea
Romine, R. — Yea
Foster — Yea
Martin — Yea
Blair — Yea
Maynard — Yea
Sypolt — Yea
Thompson — Yea
Hartman — Yea
Nelson — Yea
Walters — Yea
Diserio — Yea
Phillips — Yea
Speaker Armstead — Yea
Evans, A. — Yea
Evans, E. — Yea
Brewer — Yea
Canestraro — Yea
Capito — Yea
Cowles — Yea
Espinosa — Yea
Fast — Yea
Graves — Yea
Hamrick — Yea
Hicks — Yea
Higginbotham — Yea
Hollen — Yea
Householder — Yea
Isner — Yea
Moye — Yea
Overington — Yea
Pack — Yea
Paynter — Yea
Pyles — Yea
Robinson — Yea
Rodighiero — Yea
Sponaugle — Yea
Storch — Yea
Summers — Yea
Upson — Yea
Wagner — Yea
Ambler — Yea
Bates — Yea
Boggs — Yea
Byrd — Yea
Caputo — Yea
Fleischauer — Yea
Frich — Yea
Harshbarger — Yea
Hill — Yea
Iaquinta — Yea
Kessinger — Yea
Longstreth — Yea
Lynch — Yea
Miley — Yea
Pethtel — Yea
Rowe — Yea
Shott — Yea
Sobonya — Yea
Westfall — Yea
Wilson — Yea
John Williams Democrat Yea
Mike Pushkin Democrat Yea
Sean Hornbuckle Democrat Yea
Shawn Fluharty Democrat Yea
Ben Queen Republican Yea
Betsy Kelly Republican Yea
Bill Hamilton Republican Yea
D. Rolland Jennings Republican Yea
Erica Moore Republican Yea
Gary G. Howell Republican Yea
George Miller Republican Yea
George Miller Republican Yea
Guy Ward Republican Yea
Jason Barrett Republican Yea
Jeff Campbell Republican Nay
Jeff Eldridge Republican Yea
Jim Butler Republican Yea
Joe Ellington Republican Yea
Joe Statler Republican Yea
Lisa White Republican Yea
Mark Dean Republican Yea
Mark Zatezalo Republican Yea
Marty Gearheart Republican Yea
Matthew Rohrbach Republican Yea
Pat McGeehan Republican Yea
Roger Hanshaw Republican Yea
Roy Cooper Republican Yea
Stanley Adkins Republican Yea
Vernon Criss Republican Yea
William Anderson Republican Yea

Official roll call →

Subjects

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Frequently asked questions

Who sponsors HB 4357?
HB 4357 is sponsored by Harshbarger, Byrd, Capito, Ben Queen (Republican), Boggs, Roger Hanshaw (Republican), Shott, Jason Barrett (Republican), Foster, Nelson, and Erica Moore (Republican).
What is the current status of HB 4357?
This bill died with 2018 Regular Session. It reached “Passed House of Delegates” and never advanced before the session ended, so it can no longer move — a new version would have to be reintroduced in the current session.
Where can I track HB 4357?
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