Debriefing the 2022 WV Regular Legislative Session – Broadband

By Brian J. Skinner, Esq.

In December 2020, Congress included about $45 billion for broadband development grants as part of the Infrastructure Investment and Jobs Act (H.R. 3684). While the federal government’s efforts to fund the expansion of access to high-speed Internet is substantial, it is equally necessary for states to employ their own tools to close the digital divide.

In October 2021, West Virginia Governor Justice announced a billion-dollar plan promising to bring Internet infrastructure to 200,000 West Virginians by utilizing state and federal funding sources along with a new Rural Digital Opportunity Fund.

During the 2022 regular legislative session, the West Virginia Legislature’s effort to increase access and protect consumers was contained in House Bill 4001, often referred to as the “Broadband Bill,” which was vetoed by the Governor.

The Legislature completed action on House Bill 4001 on March 12, 2022, after the West Virginia Senate concurred on House of Delegates amendments and passed the bill. The legislation had bi-partisan support and passed with overwhelming majorities in both the House and Senate.

To facilitate the development of broadband infrastructure in the state, House Bill 4001 requires government agencies at the state and local level to furnish the Department of Economic Development with information on state rights-of-way and easements.

Once compiled, the information will be used to consider possible routes for installation of telecommunications facilities, engineering routes for installation of telecommunications facilities, and improving, expanding, enhancing, and attaching to telecommunications facilities or other utilities.

The Department is required to limit access to maps or related data to only those entities or persons who have signed a valid confidentiality or nondisclosure agreement.

The legislation also requires owners of utility poles to furnish to the Department information to accurately map locations, attachments, and other information. The map is to be made available by the Department at no cost to determine the feasibility of broadband projects

Like information related to rights-of-way and easements, the Department also must limit access to the information to persons or entities interested in or engaging in the installation of telecommunications facilities.

In addition to facilitating development of broadband projects, the legislation also includes consumer protections for broadband service subscribers. Newly created protections include:

• Credits or refunds for subscribers whose broadband service is interrupted for more than 24 continuous hours when the interruption is not caused by the subscriber, power outages, or other causes for outages beyond the control of the provider;
• Prohibiting the denial of service, access, or discrimination based on age, race, religion, sex, physical handicap, political affiliation, political views or exercise of other speech protected by the 1st Amendment to the U.S. Constitution, or country of natural origin;
• Giving subscribers 30 days advance written notice of any changes to rates or charges, including the expiration of any promotion or special pricing that would result in an increase in a subscriber’s billing or cost of service;
• Barring fees not agreed to by a customer or required by local, state, or federal government or to receive a paper bill;
• Allowing customers to use their own modem if the network is built upon a nonproprietary, industry-standard communication protocol; and
• Requiring providers to apply all credits due to a customer for any reason as soon as practicable.

The Consumer Protection Division of the Office of the Attorney General is responsible for enforcing these protections in coordination with the state Office of Broadband.

Finally, the legislation provides for the state certification of Eligible Telecommunications Carriers to ensure the proper utilization and oversight of the disbursement of funds from the Universal Service Fund established by the federal government and managed by the Federal Communications Commission. The Public Service Commission is given the duty of certifying Eligible Telecommunications Carrier upon the recommendation of the Attorney General.

However, the Governor vetoed the bill despite asserting that he fully supports the intent of the legislation because of fatal flaws and provisions that are prohibited by federal law.

The Governor has indicated he asked the Department of Economic Development and legislative leadership to “revisit and perfect” the bill with the intention of taking it up again during a special session he intends to call in late April.

Brian Skinner is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.