SB 390 — Requiring electric utilities submit feasibility studies of constructing and operating middle-mile broadband internet projects

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 390 By Senators Maynard, Tarr, Plymale, Cline, and Sypolt [Introduced[Originating Januaryin 22,the 2019;Committee on Economic Development;

ReferredReported to the Committee on EconomicJanuary Development]25, 2019]   A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article,section, designated §31G-5-1§31G-4-4, and §31G-5-2, all relating to determining the feasibility of electric utilities constructing and operating middle-mile broadband Internet projects to serve certain unserved and underserved areas;

requiringpermitting that the Broadband Enhancement Council render a judgment as to the feasibility of middle-mile broadband Internet projects within a certain period of time;

article 5.4.

Projectmake-ready feasibilitypole study.access.

§31G-5-1.§31G-4-4.

Definitions.Electric power utilities;

Forfeasibility purposesstudy offor thisproviding article:broadband services;

(a) “Commission” means the West Virginia Public Service Commission.Commission to assist;

(b)proposed “Council”legislation meansto thebe Broadbanddeveloped; Enhancement Council, as defined in article 1 of this chapter.

(c)report. “Electric Utility” means any electric utility operating within this state that is regulated by the Commission.

(d)(a) “Project”For meanspurposes aof middle-milethis broadbandsection: infrastructure expansion project proposed by an electric utility.

§31G-5-2.(1) “Commission” shall mean the West Virginia Public Service Commission;

Mandatory(2) feasibility“Council” study;shall mean the Broadband Enhancement Council, as defined in §31G-1-1 et seq.

Evaluation.of this code;

(a)(3) Each“Electric Electricutility” Utility shall investigatemean theany feasibilityelectric ofutility constructing and operating a project within Electricthis Utility'sstate distributionthat systemis andregulated submitby a feasibility study of a proposed project to the councilcommission; on or before December 1, 2019.

(b) (4) The“Project” council and the commission shall assistmean eacha suchmiddle-mile Electricbroadband Utilityinfrastructure inexpansion itsproject preparationproposed ofby suchan aelectric feasibilityutility. study.

(c)(b) AEach electric utility may investigate the feasibility of constructing and operating a project within the electric utility’s distribution system and, if it so elects, may submit a feasibility study of a proposed project to the council on or before December 1, 2019.  Additional feasibility studies may be submitted to the council after December 1, 2019 without penalty.  (c) The council and the commission shall includeassist aneach evaluationsuch electric utility in its preparation of thesuch following:a feasibility study.

(i)(d) The scope of the proposed project for which the feasibility study is conducted, which shall include,include butan notevaluation beof limitedthe to:following:

(A)(1) The routescope of the middle-mile Infrastructure proposed for the project, the number of fiber strands that would be utilized in connection with the proposed project andfor dedicatedwhich to serve as the middlefeasibility mile,study theis locationconducted, ofwhich theshall Electricinclude Utility's distribution infrastructure that will be utilized  in connection with the proposed project, the capacity of the middle mile broadband  infrastructure that will be available to lease to last-mile broadband Internet providers upon completion of the proposed project (B) The estimated cost of the proposed project, including, but not be limited to,to: engineering costs, construction costs, permitting costs, materials and labor, right of way costs, and a reasonable  rate of return to the Electric Utility;

(C)(A) The proposedroute schedule of constructionthe ofmiddle-mile theinfrastructure proposed project.;for the project;

andthe (D)number Theof methodfiber ofstrands attachmentthat andwould be utilized in connection ofwith the middle-mileproposed broadbandproject fiberand assetsdedicated to theserve Electricas Utility'sthe distributionmiddle-mile; Infrastructure:

(ii)the Thelocation regulatoryof barriersthe toelectric anutility’s Electricdistribution Utility constructing a project and operating middle-mile  broadband infrastructure tothat providewill accessbe toutilized unservedin andconnection underservedwith areas of the state, and proposed legislationproject; to address such regulatory barriers:

(iii)the Whethercapacity itof is in the publicmiddle-mile interestbroadband andinfrastructure thethat interestwill ofbe theavailable Electric Utility to makelease improvements to thelast-mile distribution grid in furtherance of providing such middle-mile broadband Internet servicesproviders inupon conjunctioncompletion with its program of electricthe distributionproposed projects;project;

(iv)(B) WhetherThe itestimated iscost inof the publicproposed interestproject, andincluding, thebut interestnot oflimited theto, Electricengineering Utilitycosts, toconstruction operatecosts, middle-milepermitting broadbandcosts, Internetmaterials assetsand tolabor, provideright-of-way accesscosts, and a reasonable rate of return to unservedthe andelectric underservedutility;    areas(C) The proposed schedule of construction of the state:proposed project;

(v)and Whether(D) itThe ismethod inof theattachment public interest and theconnection interest of the Electricmiddle-mile Utility to permit a third-party to lease such capacity to provide last-mile broadband Internetfiber servicesassets to unservedthe andelectric underservedutility’s areasdistribution ofinfrastructure; the state:

(vi)(2) WhetherThe constructionregulatory ofand middle-milelegal broadbandbarriers Internetto infrastructurean utilizingelectric Electricutility’s Utilityconstructing distributiona systemsproject isand feasibleoperating withmiddle-mile respectbroadband infrastructure to theprovide maturityaccess to unserved areas of the relevantstate, technology,as thedefined compatibilityin §31G-1-2 of suchthis servicescode, withand existingany electricunderserved services,areas andof the financialstate, requirementsand proposed legislation to undertakeaddress such project;regulatory barriers;

(vii)(3) TheWhether anticipatedit levelis ofin ratethe adjustmentpublic necessaryinterest toand allow the Electricinterest Utilityof tothe recoverelectric itsutility coststo associatedmake withimprovements to the proposeddistribution project,grid andin afurtherance reasonable rate of return,providing onsuch anmiddle-mile expeditedbroadband basis,Internet thatservices willin beconjunction recoveredwith byits theprogram Electricof Utilityelectric throughdistribution aprojects; rate adjustment at the commission;

(4) Whether it is in the public interest and (viii)the Suchinterest otherof informationthe thatelectric isutility pertinentto operate middle-mile broadband Internet assets to provide access to unserved and underserved areas of the project.state;

(d)(5) UponWhether receiptit ofis ain feasibilitythe study,public interest and the councilinterest shallof renderthe aelectric determination,utility byto permit a majoritythird-party voteto oflease thesuch council,capacity asto provide last-mile broadband Internet services to theunserved feasibilityand underserved areas of the proposedstate; project.

(e)(6) InWhether itsconstruction considerationof middle-mile broadband Internet infrastructure utilizing electric utility distribution systems is feasible with respect to the maturity of the feasibilityrelevant technology, the compatibility of asuch project,services with existing electric services, and the councilfinancial shallrequirements identifyto oneundertake orsuch moreproject;  last-mile(7) broadbandThe Internetanticipated providerslevel thatof willrate leaseadjustment necessary to allow the middle-mileelectric broadbandutility Internetto capacityrecover createdits bycosts associated with the proposed projectproject, pursuantand toa leasereasonable termsrate andof conditionsreturn, seton an expedited basis, that will be recovered by the council.electric utility through a rate adjustment at the commission;

(f)and The(8)  councilSuch shallother renderinformation suchthat feasibility determination within 60 days from the data the feasibility study is submittedpertinent to the council.project.

(g)(e) CommencingUpon Januaryreceipt 1,of 2020,a andfeasibility eachstudy, year thereafter, the council shall giverender a reportdetermination, ofby Itsa considerationmajority ofvote feasibility studies submitted pursuant to this section of the codecouncil, as to the Governor,feasibility the President of the Senate,proposed theproject. Speaker of the House of Delegates, and the Joint Committee on Government and Finance.

(f) In its consideration of the feasibility of a project, the council shall identify one or more last-mile broadband Internet providers that may lease the middle-mile broadband Internet capacity created by the proposed project pursuant to lease terms and conditions set by the council.

(g) The council shall render such feasibility determination within 60 days from the date the feasibility study is submitted to the council.

(h) Commencing January 1, 2020, and each year thereafter, the council shall give a report of its consideration of feasibility studies submitted pursuant to this section to the Governor, the President of the Senate, the Speaker of the House of Delegates, and the Joint Committee on Government and Finance.

The purpose of this bill is to requiregive Electricthe Utilitiesoption to electric utilities to submit feasibility studies of potential middle-mile broadband internetInternet service projects to the Broadband Enhancement Council for the council'scouncil’s consideration.

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