West Virginia Code 17-2E-5 – Telecommunications carrier initiated construction and joint use
(a) Upon application for a permit, the applicant shall notify, by email, the Office of Broadband and all other telecommunications carriers on record with the office of the application. Other telecommunications carriers have 15 calendar days to notify the applicant of their interest to share the applicant’s trench. This requirement extends to all underground construction technologies.
Terms Used In West Virginia Code 17-2E-5
- conduit: means a conduit, innerduct, or microduct for fiber optic cables that support facilities for broadband service. See West Virginia Code 17-2E-2
- Council: means the Broadband Enhancement Council. See West Virginia Code 17-2E-2
- Direct bury: means the burying of telecommunications wire or cable directly into the ground by means of plowing or direct insertion without the opening of a trench and without the installation of conduit or innerduct. See West Virginia Code 17-2E-2
- Division: means the Division of Highways. See West Virginia Code 17-2E-2
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Permit: means an encroachment permit issued by the commissioner of the division under the authority of this code, and pursuant to the Accommodation of Utilities on Highway Right-of-Way and Adjustment and Relocation of Utility Facilities on Highway Projects Policy, or equivalent policy, as may be currently enforced by the division, that specifies the requirements and conditions for performing work in a right-of-way and where such work involves the creation or opening of a trench for the installation of telecommunications facilities in a right-of-way. See West Virginia Code 17-2E-2
- Right-of-way: means land, property, or any interest therein acquired or controlled by the division for transportation facilities or other transportation purposes or specifically acquired for utility accommodation. See West Virginia Code 17-2E-2
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- Telecommunications carrier: means a telecommunications carrier:
(A) As determined by the Public Service Commission of West Virginia. See West Virginia Code 17-2E-2
(b) If no competing telecommunications carrier provides notice of interest to share the applicant’s trench within 15 calendar days of notice of the project, the applicant shall provide written certification in accordance with subsection (g) of this section.
(c) If a competing telecommunications carrier provides notice of interest to share the applicant’s trench, an agreement between the two (or more) telecommunications carriers shall be executed by those entities within 30 days of the notice of interest, outlining the responsibilities and financial obligations of each, with respect to the installation within the right-of-way. The financial obligations of each carrier shall be based on the proportionate sharing of costs between each carrier for joint trenching or trench sharing based on the amount of conduit or innerduct space or excess conduit that is authorized in the agreements entered into pursuant to this article. If the division uses a trench, it shall also pay its proportional share unless it is utilizing the trench as in-kind payment for use of the right-of-way, or the division has otherwise determined, in its sole discretion, that including the division in the apportionment of costs is not warranted. A copy of the executed agreement shall be provided to the division.
(d) Should a dispute arise between the initial applying telecommunications carrier and a competing telecommunications carrier, including a failure to execute an agreement required by subsection (c) of this section, the dispute shall be adjudicated by the Public Service Commission. All disputes brought to the Public Service Commission under this article shall be adjudicated within 45 days.
(e) If two or more telecommunications carriers are required or authorized to share a single trench, each carrier in the trench must share the cost and benefits of the trench in a fair, reasonable, competitively neutral, and nondiscriminatory manner. This requirement extends to all underground construction technologies.
(f) The provisions of this section do not apply to the following projects:
(1) Projects where the total continuous length of the trench is less than 1,000 feet;
(2) Projects that use the direct bury of cable or wire facilities;
(3) Projects that are solely for the service of entities involved in national security matters or where the disclosure or sharing of a trench location would be against federal policy; or
(4) Projects made available for lease to competing telecommunications carriers on a nondiscriminatory basis at rates established by the rules of the Federal Communications Commission Projects where the telecommunications carrier installs an amount of spare conduit or innerduct equal to what is being installed for its own use and which is given to the Office of Broadband. Such spare conduit or innerduct shall be made available for sale or lease to competing telecommunications carriers on a nondiscriminatory basis at rates apportioned on the basis of the cost of the installation thereof, to other telecommunications providers, and the revenues derived from such sale, less any costs associated therewith, shall be remitted to the telecommunications carrier that installed such spare conduit or innerduct in a manner consistent with all applicable state and federal law and regulations. All carriers installing spare conduit or innerduct shall notify the council and the Office of Broadband of the location and capacity of such spare conduit and innerduct upon completion of the project, and the council shall make such information publicly available for competing telecommunications carriers.
(g) The Office of Broadband is responsible for ensuring compliance with this section and will provide the division and the applicant with certification of compliance at such time as the applicant has met all of the requirements of this section.