West Virginia Code 31H-2-3 – Access to authority utility poles; 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 within the right-of-way subject to the provisions of this chapter and the following:
Terms Used In West Virginia Code 31H-2-3
- 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. See West Virginia Code 31H-1-2
- Applicant: means any person who submits an application and is a wireless provider. See West Virginia Code 31H-1-2
- 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. See West Virginia Code 31H-1-2
- 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. See West Virginia Code 31H-1-2
- Authority utility pole: means a utility pole owned or operated by an authority in a public right-of-way. See West Virginia Code 31H-1-2
- collocation: means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole. See West Virginia Code 31H-1-2
- Commissioner: means the Commissioner of the West Virginia Division of Highways. See West Virginia Code 31H-1-2
- Communications service: means cable service, as defined in 47 U. See West Virginia Code 31H-1-2
- Division: means the West Virginia Division of Highways. See West Virginia Code 31H-1-2
- Fee: means a one-time, nonrecurring charge. See West Virginia Code 31H-1-2
- Person: means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including an authority. See West Virginia Code 31H-1-2
- Rate: means a recurring charge. See West Virginia Code 31H-1-2
- 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. See West Virginia Code 31H-1-2
- 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. See West Virginia Code 31H-1-2
- 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 15 feet or taller), or a similar function, or for the collocation of small wireless facilities. See West Virginia Code 31H-1-2
- Wireless facility: includes small wireless facilities. See West Virginia Code 31H-1-2
- Wireless provider: means a wireless infrastructure provider or a wireless provider. See West Virginia Code 31H-1-2
(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;
(3) An authority may charge an annual recurring rate to collocate small wireless facilities on an authority utility pole that equals $65 per year per pole. An authority may adjust this rate 10 percent every five years, rounded to the nearest five dollars. Nothing in this subdivision prohibits a wireless provider and an authority from mutually agreeing to an annual recurring rate of less than $65 to collocate a small wireless facility on an authority utility pole;
(4) The rates, fees, and terms for make-ready work 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. Make-ready work including any pole replacement shall be completed within 60 days of written acceptance of the good faith estimate by the applicant. 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; 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 may not include costs related to preexisting or prior damage or noncompliance. 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.
(b) For the purposes of a state-owned right-of-way maintained by the Division of Highways, the commissioner shall propose rules for legislative approval, in accordance with the provisions of § 29A-3-1 et seq. of this code, to implement the provisions of this article.
(c) Application fees are subject to the following requirements:
(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 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. An authority may adjust this fee 10 percent every five years, rounded to the nearest five dollars;
(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 not to exceed $250. An authority may adjust this fee 10 percent every five years, rounded to the nearest five dollars; 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. An authority may adjust this fee 10 percent every five years, rounded to the nearest five dollars.