W. Va. Code R. § 150-25-13

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 150-25-13 - Wireless Tower Access Assistance Fund

13.1. Projects.

13.1.1. Project Review. In order to receive "grant funding" for a project from the Wireless Tower Access Assistance Fund, a project sponsor must submit the appropriate form application, to be developed and provided by the Wireless Tower Access Assistance Fund Review Committee, and the project must receive the approval of the Committee.

13.1.2. Application Filing. To be considered for funding from money accruing from the period January 1 through December 31 of the funding year, the project sponsor must file its application on or before November 15 of the funding year with the Commission's Executive Secretary.

13.1.3. Application Review. The Committee will review all applications filed on or before the November 15 filing deadline. The Committee will make a determination regarding each application and either recommend the approval of, in whole or in part, or the denial of funding for the project or request additional information if necessary to make a determination. The Committee will rank all of the applications for which it recommends approval in order of funding preference. A copy of the determination by the Committee will be sent to the Commission's Executive Secretary and to the applicant. The Committee will review the applications and make recommendations to the Commission, as described above, during the period following the November 15 filing deadline and before December 31. This same procedure will repeat with each calendar year, provided that, upon a positive vote of at least six of its members, the Committee, for good cause shown, may treat an application in an expedited manner to be determined by the members. In all such instances of expedited treatment, the Commission will have fourteen (14) days, from receipt of the Committee's expedited recommendation, in which to make its decision regarding such expedited recommendation.

13.1.3.a. The determination by the Committee must be in writing and contain findings that the project meets, if funding is recommended, or does not meet, if funding is not recommended, each of the public interest factors specified in section 13.2. of these Rules.

13.1.3.b. If funding for a project is denied for any reason, the Committee will provide written notice of such to the applicant with a copy to the Commission's Executive Secretary.

13.1.4. Committee Determination. Prior to making any grant, the Committee shall determine that the grant funding and the manner in which it will be provided are necessary or appropriate to accomplish the purposes and intent of W. Va. Code § 24-6-6b(e). The Committee will give priority to projects, including projects involving public/private partnerships, where the project will provide significant benefits to public safety communications, including law enforcement, ambulance, rescue and firefighting communication devices, as well as to commercial mobile radio services, cellular phone services, specialized mobile radio communications services, common carrier wireless exchange phone services, personal communications services, wireless broadband Internet access, Department of Highways communication devices and/or pager services.

13.1.5. Issuance of funds by the Commission. Within fourteen (14) days of the receipt of the determination of the Wireless Tower Access Assistance Fund Review Committee, the Commission will, in the instance of a determination to fund a particular project, decide to either accept or reject such determination. Upon the Commission's acceptance to fund a particular project, the Administration Division will mail a copy of the funding contract to the applicant and schedule a closing on the grant to be held within thirty (30) days. The Commission will continue its decision-making process through the ranked list until the available funding for the fiscal year is exhausted.

13.1.6. Eligible Grant Recipients. The Committee will not recommend grants for any project that is not applied for by a county commission as project sponsor on behalf of itself and/or another person.

13.1.7. Grant Requirements. The Committee may recommend a grant for a project if the Committee determines and finds that (1) the project will result in the provision of wireless enhanced 911 service coverage in the project area; and (2) the absence of a sufficient number of potential wireless users in the project area prevents adequate funding of the project without the awarding of a grant from the Wireless Tower Access Assistance Fund.

13.1.8. Loans. The Committee will not recommend, and the Commission will not distribute, any loans from the Wireless Tower Access Assistance Fund.

13.2. Review Guidelines.

13.2.1. Determination of Eligible Projects. When evaluating any request for funding assistance to acquire, construct or equip a wireless tower, the Committee will consider the following:

13.2.1.a. The public health and safety benefits;

13.2.1.b. The degree to which the project will allow the acquisition, construction, and/or equipping of a wireless tower which would provide additional enhanced 911 service coverage;

13.2.1.c. The degree to which the project sponsor can establish that, without such funds, such project would not be economically feasible;

13.2.1.d. The cost effectiveness of the project as compared with alternatives which achieve substantially the same benefits;

13.2.1.e. The availability of alternative sources of funding which could finance all or a part of the project, and the need for the assistance of the Commission to finance the project or attract other sources of funding;

13.2.1.f. The applicant's ability to operate and maintain the wireless tower if the project is approved and consummated;

13.2.1.g. The degree to which the project achieves or abets other state or regional planning goals;

13.2.1.h. The estimated date upon which the project could commence if funding were available and the estimated completion date of the project;

13.2.1.i. The capability of the project to permit the co-location of communications equipment on the proposed tower for CMRS, cellular phone services, SMR services, common carrier wireless exchange phone services, PCS, public safety (including law enforcement, ambulance, rescue and fire fighting) communications, wireless broadband Internet access, Department of Highways communications and/or pager services;

13.2.1.j. The adequacy and efficiency of other wireless communications facilities, if any, in the area to be served by the project; the increase in the reliability of wireless communications service which will be attained; and the efficiency of the proposed solution when compared with other alternatives; and

13.2.1.k. Verification that the project sponsor will obtain a performance bond guaranteeing completion of the project.

13.3. Wireless Tower Access Assistance Fund Administration.

13.3.1. Administration of the Wireless Tower Access Assistance Fund. The Commission's Administration Division will be responsible for administration of the account containing Wireless Tower Access Assistance Fund money. The Administration Division will receive and deposit Wireless Tower Fee revenues intended for the Fund and will be responsible for all Fund grant transactions.

13.3.2. Sources of Money for Fund. The Fund will consist of Wireless Tower Fee revenues; any appropriations, grants, gifts, contributions, or other revenues received by the Wireless Tower Access Assistance Fund from any source, public or private; insurance proceeds payable to the Commission or the Fund in connection with any Wireless Tower Assistance project or projects; and all income earned on moneys held in the Fund.

13.3.3. Use of Moneys in the Fund. The Commission, subject to the restrictions set forth in W. Va. Code § 24-6-6b, will use money in the Wireless Tower Access Assistance Fund to make grants to finance all or part of the costs of projects to be undertaken by a project sponsor.

13.3.4. Reporting Requirements of Grant. West Virginia Code §24-4-14 and the State Auditor's Accountability Requirements for State Funds and Grants, 150 C.S.R. Series 9, establishes reporting requirements for the Commission as the grantor of wireless tower grant funds and the project sponsor(s) who is/are awarded grant monies from the Wireless Tower Access Assistance Fund.

13.3.4.a. Project Sponsor Grantee(s) Reporting. Within two years of the end of the grantee's fiscal year in which the disbursement of state grant funds by the Commission is made, a grantee of $50,000 or more of Wireless Tower Access Assistance Fund, in a state's fiscal year, will file with the Commission and the State Auditor a report of the disbursement of the grant funds; and, a grantee of less than $50,000, in a state's fiscal year, will file with the Commission and the State Auditor a sworn statement detailing the expenditures of the grant funds.

13.3.4.b. Project Sponsor Grantor Reporting. The Director of the Commission's Administration Division is named Chief Accountability Officer and responsible to facilitate compliance with W. Va. Code §24-4-14 and the State Auditor's Accountability Requirements for State Funds and Grants, 150 C.S.R. Series 9, with respect to the Commission's requirement to report on Wireless Tower Access Assistance Fund funding, including reporting any grantee(s) failing to file a report or sworn statement in accordance with the law.

13.3.4.c. Wireless Tower Access Assistance Fund Review Committee Reporting. The Committee will prepare a report for the Commission on an annual basis listing the projects which received grant money and are sold after receipt of grant funds, including a description of the terms by which the project sponsor(s) will repay grant monies upon the sale of a grant funded wireless tower.

13.3.5. Terms and conditions for Receiving Financial Assistance from the Fund. Each grant awarded by the Commission will be evidenced by a grant agreement contract between the Commission as the grantor and the project sponsor(s) as the grantee which will include, in addition to those provisions described elsewhere in this Rule, and without limitation and to the extent applicable, the following provisions:

13.3.5.a. The estimated cost of the project and the amount of the grant;

13.3.5.b. The specific purposes for which any items on which the grant proceeds will be expended and the conditions and procedure for disbursing grant proceeds;

13.3.5.c. The duties and obligations imposed by the Commission upon the project sponsor(s) regarding the project;

13.3.5.d. The agreement of the project sponsor(s) will comply with all applicable federal and state laws and all Rules and regulations issued or imposed by the Commission or other state, federal or local bodies regarding the design, acquisition, equipping, and/or construction of the wireless tower and granting the Commission the right to appoint a receiver for the wireless tower project if the project sponsor should default on any terms of the agreement;

13.3.5.e. The project sponsor(s) will provide the Commission with thirty (30) days advance notice of its intent to sell the tower that is the subject of the project, by filing written notice with the Executive Secretary of the Commission, which must include the Tower Assistance Fund (-TAF) docket number for the specific grant that funded the tower.

13.3.5.f. Upon sale by the project sponsor(s) of the tower that is the subject of the project, to the extent that proceeds are available, the project sponsor(s) will reimburse the Wireless Tower Access Assistance Fund the amount of the grant funding, reduced by the applicable share of accumulated depreciation of the project.

13.3.5.g. The grant agreement contract will be governed by the laws of the State of West Virginia.

13.4. Filing and Docketing of Applications.

13.4.1. Applications procedures. The project sponsor will file an original and one copy of the application with the Commission's Executive Secretary. That office will record the filing in the Commission's docket using an appropriate designation methodology consisting of a Tower Assistance Fund (-TAF) case designation. The chairman of the Wireless Tower Access Assistance Fund Review Committee will distribute the application filing to the other members of the Committee. The project sponsor will send any additional documents, correspondence, etc., associated with the filing directly to each of the members of the Committee and will file one copy with the Commission's Executive Secretary. The project sponsor will, upon request of the chairman of the Committee, make electronic copies, in a format specified by that person, of all application documents available, including documents comprising the original application and documents filed subsequently.

13.5. Wireless Tower Access Assistance Fund Review Committee.

13.5.1. Terms of Membership. Membership terms will be for three years. Initial memberships of the Commission Staff representative, the House representative and the Senate representative will be for one year and initial memberships for the County Commissioners' Association of West Virginia representative, the wireless telephone providers representative and the wireless tower construction industry representative will be for two years. Members will serve at the will and pleasure of the appointing authority. The unexpired portion of a vacating member's term will be filled by a replacement appointed pursuant to Rule 2.29, herein.

13.5.2. Bylaws. The Wireless Tower Access Assistance Fund Review Committee will, as soon as possible, draft bylaws and submit them to the Commission for its review and approval. Such bylaws will include, among other necessary provisions of the Committee to conduct business, provisions related to (1) the conduct of public meetings, (2) the publication of the time, location, and agenda of such meetings, (3) Rules for submission of items to the agenda, (4) a provision for minutes of the meetings, (5) copies of the grant application forms as developed by the Committee, and (6) copies of the contracts used to administer the individual grants as developed by the Committee.

13.5.3. Voting. Each Committee member will have one vote on all matters put to a vote by the Committee. A Committee member may, by stating such on a written and signed document submitted to the Committee Chairperson, assign a voting designee when that member is unable to attend a Committee meeting. Members may attend meetings in person or via teleconference facilities. A member or that member's voting designee must be in attendance at a Committee meeting in order to vote on matters at that meeting. Matters voted upon at Committee meetings will be considered passed when a majority of the members and member designees present at the meeting, either in person or via teleconference facilities, vote for the matter.

13.5.4. Quorum. No matter may be put to a vote at a Committee meeting unless a quorum of members and member designees is present at the meeting. A quorum will consist of a total of at least four (4) voting members and/or member designees.

13.5.5. Chairperson. The Committee membership will designate a Chairperson who will be responsible for conducting the business of the Committee. The Chairperson will serve at the will and pleasure of the Committee's members and may be replaced by a majority vote at a Committee meeting at which a quorum is present. The Chairperson, or that person's designee, designated by submission of a signed written document to the Chairman of the Commission, will preside at Committee meetings.

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W. Va. Code R. § 150-25-13