W. Va. Code R. § 150-26-2

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

Section 150-26-2 - Issuance of Cable Television Franchises

2.1. No cable television franchise shall be granted in this state unless it is awarded in compliance with the procedures set forth in this rule and in compliance with the West Virginia Cable Television Systems Act, W. Va. Code '24D-1-1 et seq.

2.2. Prior to inviting applications for any cable television franchise, a franchising authority shall adopt a request for proposals that shall contain, but need not be limited to, the following:

2.2.1. A description of the cable television system desired by the franchising authority, including any system specifications established by the Commission.

2.2.2. A statement specifying that applicants must use the application form established by the Commission.

2.2.3. A statement indicating the fee to be submitted with the application, and the manner in which such fee is to be submitted.

2.2.4. A statement that all applications must contain the information required by section 2.9 this rule.

2.2.5. The closing date for the submission of applications (which shall be the same as that contained in the public notice).

2.2.6. The name, address, and telephone number of the officials who may be contacted for further information.

2.3. A franchising authority shall invite applications for a cable television franchise by means of a public notice advertising the availability of its requests for proposals. The public notice shall contain, but need not be limited to:

2.3.1. A description of the political or geographic boundaries of the area for which a franchise is sought.

2.3.2. A statement that a formal request for proposals is available to prospective applicants from a municipal, county or Commission officer whose name, address, and telephone number are specified.

2.3.3. A statement that applications for the franchise must be submitted in writing following the application form and manner specified by the Commission no later than a date certain (which date shall be not less than 60 days from the date of final publication of the public notice).

2.3.4. A statement that all applications will be made available for public inspection during normal business hours at a specified location within the county of the cable service area.

2.4. The public notice of request for proposals shall, for cable franchises having a service area with more than one thousand (1000) homes passed, be published in the following manner:

2.4.1. At least once in each two (2) different calendar weeks in a newspaper of general circulation in the county or counties in which the proposed service area is located.

2.4.2. At least once in any two (2) publications that may reasonably be expected to attract the attention of prospective franchise applicants nationally.

2.4.3. The last published notice shall appear at least fifteen (15) days prior to the date of the hearing.

2.4.4. Public notice advertising proposals for more than one franchise may be published together within the same ad.

2.5. The public notice of request for proposals shall, for cable franchises having a service area with one thousand (1000) homes passed or less, be published in the following manner:

2.5.1. At least once in each two (2) different calendar weeks in a newspaper of general circulation in the county or counties in which the proposed service area is located.

2.5.2. At least once in each two (2) different calendar weeks in a newspaper having significant general statewide circulation in West Virginia, or significant general circulation in Charleston, West Virginia.

2.5.3. The last published notice shall appear at least fifteen (15) days prior to the date of the hearing.

2.5.4. Public notice advertising proposals for more than one franchise may be published together within the same ad.

2.6. Promptly upon the filing of its public notice of request for proposals to any magazine or newspaper for publication, the franchising authority shall furnish the Commission true and complete copies of:

2.6.1. The proposed public notice; and

2.6.2. The formally adopted request for proposals.

2.7. Upon receipt of proof of publication from the publishers, the franchising authority shall forward a copy of such proof to the Commission.

2.8. If the franchising authority is the Commission, notice shall be given to the city council and mayor of any municipalities affected, the county commission of any counties affected and to any telephone or other utility and cable company in the county or counties affected by the proposed service area.

2.9. Every applicant submitting a franchising authority for a cable television franchise shall use the application form established by the Commission to provide the information necessary to determine whether a cable franchise should be issued. (See Form No. 1).

2.10. The franchising authority shall not accept applications for a cable franchise that do not use the form provided by the Commission. The franchising authority shall not accept applications which have not followed the instruction and format required by the Public Service Commission.

2.11. The application must provide all information required by the Commission before it may be accepted for filing and considered by the franchising authority.

2.12. The franchising authority shall notify an applicant in writing that its application for a cable franchise has been either accepted for filing or rejected within thirty (30) days of receipt of the application.

2.13. If an application for a franchise is rejected as incomplete or for failing to use the proper form and format of the application form provided by the Commission, the franchising authority shall notify the applicant in writing the reasons for rejection and provide an applicant thirty (30) days to file a correct and completed application.

2.14. The franchising authority shall use due diligence to investigate and assess the technical ability, financial condition, and character of every applicant in order to determine whether it would be in the public interest to grant a cable franchise.

2.14.1. Specific factors the franchising authority must consider when determining whether granting a specific cable application would be in the pubic interest are:

2.14.1.a. Any objections arising from the public hearing;

2.14.1.b. The content of the application or proposal;

2.14.1.c. The public need for the proposed service;

2.14.1.d. The ability of the applicant to offer safe, adequate and reliable service at a reasonable cost to the subscribers;

2.14.1.e. The suitability as to the good character of the applicant;

2.14.1.f. The financial responsibility of the applicant;

2.14.1.g. The technical and operational ability of the applicant to perform efficiently the service for which authority is requested;

2.14.1.h. The geography or topography of the proposed service area;

2.14.1.i. The present, planned, and potential expansion in facilities or cable services of the applicant's proposed cable system and any of the applicant's existing cable systems; and

2.14.1.j. Any other matters the franchising authority considers appropriate in the circumstances.

2.15. The franchising authority shall conduct a public hearing prior to awarding any cable television franchise. The hearing shall be preceded by reasonable notice to each of the franchise applicants and to the public and shall be conducted by the franchising authority in accordance with the following procedures:

2.15.1. There shall be an agenda for the hearing which shall specify the proposals to be considered at the hearing.

2.15.2. Every person who has applied for a cable television franchise shall appear at the hearing either in person or by authorized representative. The application of the applicant who does not appear will not be further considered except for good cause shown for the applicant's absence.

2.15.3. All persons shall be given full opportunity to participate in the hearing and to ask questions of any applicant or participant in the hearing, but nothing contained herein shall limit the power of the presiding officer to establish reasonable time limits and otherwise limit repetitive statements or questions.

2.15.4. The notice of hearing shall:

2.15.4.a. Conform to all relevant state and local laws and ordinances;

2.15.4.b. Describe the agenda to be considered at the public hearing; and

2.15.4.c. Indicate that copies of all franchise applications are available for public inspection during normal business hours at a place to be specified in the notice.

2.15.5. Where the franchising authority has received more than one application for a cable television franchise, the hearing required by this section shall be convened not sooner than thirty (30) days following the closing date specified for the filing of such applications.

2.15.6. Notwithstanding the number of applications for a cable television franchise which have been received, the hearing required by this section shall be convened within one hundred twenty (120) days after the later of the following dates:

2.15.6.a. The closing date specified for the filing of such applications; or

2.15.6.b. The earliest date upon which the franchising authority may convene such a hearing pursuant to local law or charter.

2.15.7. The franchising authority shall provide the Commission with a copy of the Notice of Public Hearing at the time it is published.

2.16. If more than one application for a cable television franchise has been received by a franchising authority, a franchise may be awarded by that franchising authority no sooner than thirty (30) days following the public hearing held pursuant to this rule.

2.17. Notwithstanding the number of applications for a cable television franchise which have been received, the franchising authority shall either award a cable television franchise or deny all applications before it for the franchise within a period of four months from the public hearing held pursuant to this rule. The failure of the franchising authority to act within this period shall be considered a denial of all cable television franchise applications pending before the franchising authority at such time. Such denial due to failure to act shall be promptly communicated to the applicants in writing.

2.18. A franchising authority may award a cable television franchise only if due diligence is used to prepare a franchise agreement that will protect the interests of the residents of the service area affected by the proposed franchise.

2.19. Upon the award of a cable television franchise, the franchising authority shall include in its decision awarding the franchise the reasons for the award and for the selection of the franchisee.

2.20. The franchise agreement entered into between the franchising authority and the cable operator must contain certain provisions and follow the standards as set forth by law or by guidelines as adopted by the Commission. (See Form No. 2). All franchising agreements must be filed with the Commission and are subject to its review to ensure compliance.

2.21. Provisions contained in franchising agreements entered into after the effective date of the West Virginia Cable Television Systems Act which conflict with or are contrary to law or the guidelines adopted by the Commission are null and void, and the Commission may institute action under W. Va. Code '24D-1-1 et seq. to correct any omission in the contract, as well as to prohibit enforcement of any unlawful or invalid contract provisions.

2.22. After considering all matters of record regarding a cable franchise application, a franchising authority may, in its discretion, issue only a partial exercise of the franchise sought or may attach to the franchise granted any franchise terms or limitations which the franchising authority considers necessary for the public interest.

2.23. If a franchising authority, after investigation and consideration of an application for a franchise, decides to reject or grant only part of the franchise, it shall set forth in writing its decision and the reasons for it.

W. Va. Code R. § 150-26-2