W. Va. Code R. § 187-1-10

Current through Register Vol. XLI, No. 35, August 30, 2024

Section 187-1-10 - Procedure for franchising non-franchised cable operators already providing cable service

10.1. A franchising authority may, on its own initiative, conduct a public hearing which gives the public in a potential cable franchise area an opportunity to identify that area's future cable related needs and interests and to review the past performance of any non-franchised cable operator who may currently provide cable service or who may have provided cable service in the past two years to that area.

10.1.1. Notice of the public hearing shall be published at least once in each of two different calendar weeks in a newspaper of general circulation in the county or counties in which the franchise area is served. The last published notice shall appear at least fifteen (15) days prior to the date of the hearing.

10.2. A non-franchised cable operator shall, within sixty (60) days of receipt of notice from the West Virginia Cable Television Advisory Board of the identity of its franchising authority or authorities, file an application for a franchise. This notice shall be provided by the West Virginia Cable Television Advisory Board pursuant to W. Va. Code § 5-18-4,

10.3. A franchising authority may also invite applications for a cable television franchise for areas not served by a franchised operator and for areas served by a non-franchised operator. If a franchising authority desires to invite such applications, it shall follow the procedures set forth in sections 4 through 8 of this rule to obtain and evaluate such applications.

10.3.1. If a cable operator submits an application for a franchise for an area already serviced by a non-franchised operator, the non-franchised operator servicing the area shall be afforded notice of the hearing held pursuant to section 7 of this rule. Such non-franchised operator shall be given an opportunity at that hearing to present evidence, examine and cross-examine witnesses, and to require the production of evidence regarding:

(1) the new applicant's financial, legal, and technical ability to provide the services, facilities, and equipment as set forth in the new applicant's proposaland

(2) whether or not the new applicant's proposal is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests.

10.4. Every application for a franchise from a non-franchised cable operator shall be on the form established by the West Virginia Cable Television Advisory Board to provide the information necessary to determine whether a franchise should be issued.

10.5. The franchising authority shall not accept applications for a cable franchise from non-franchised operators that do not use the form provided by the West Virginia Cable Television Advisory Board. The franchising authority shall not accept applications which have not followed the instructions and format required by the West Virginia Cable Television Advisory Board.

10.6. The application for a franchise must provide all information required by the West Virginia Cable Television Advisory Board before it may be accepted for filing and considered by the franchising authority.

10.6.1. The franchising authority shall promptly provide the West Virginia Cable Television Advisory Board with a copy of any application for franchise the franchising authority receives from non-franchised cable operators.

10.7. If a non-franchised cable operator submits an application for a franchise, the franchising authority shall notify the non-franchised cable operator in writing that its application for a franchise has been either accepted for filing or rejected within thirty (30) days of receipt of the application.

10.7.1. 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 West Virginia Cable Television Advisory Board, 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.

10.8. 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.

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

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

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

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

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

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

10.8.1.f. The financial responsibility of the applicant;

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

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

10.8.1.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

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

10.8.2. Because the non-franchised cable operator has established a record of service in a specific area, the franchising authority should also especially consider whether the past quality of the operator's service, including signal quality, response to consumer complaints, and billing practices have been reasonable in light of past community needs.

10.9. The franchising authority shall conduct a public hearing prior to awarding any cable television franchise a non-franchised operator who has provided cable service. The hearing shall be preceded by reasonable notice to the non-franchised operator and to the public and shall be conducted by the franchising authority in accordance with the following procedures:

10.9.1. There shall be an agenda for the hearing which shall- specify the proposal to be considered at the hearing.

10.9.2. The non-franchised operator who has applied for a cable television franchise shall appear at the hearing either in person or by authorized representative. The application of the non-franchised operator who does not appear will not be further considered except for good cause shown for the absence.

10.9.3. All persons shall be given full opportunity to participate in the hearing and to ask questions of the non-franchised operator 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. A transcript of the hearing shall be made.

10.9.4. The notice of hearing shall:

10.9.4.a. Conform to all relevant state and local laws and ordinances.

10.9.4.b. Describe the agenda to be considered at the public hearing.

10.9.4.c. Indicate that a copy of the franchise application is available for public inspection during normal business hours at a place to be specified in the notice.

10.9.5. The hearing required by this subsection shall be convened not sooner than thirty (30) days nor later than one hundred twenty (120) days following the filing of the application.

10.9.6. The franchising authority shall provide the West Virginia Cable Television Advisory Board with a copy of the Notice Public .Hearing at the time it is published.

10.10. The franchising authority shall issue a decision on the application for a franchise from a non-franchised cable operator as soon as practicable after the public hearing but not later than sixty (60) days after the hearing is concluded. The franchising authority shall promptly notify the non-franchised operator and the West Virginia Cable Television Advisory Board in writing of its decision.

10.10.1. A franchising authority may award a franchise to a non-franchised cable operator who has provided cable service in the past to the proposed franchise area 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.

10.10.2. The franchising agreement entered into between the franchising authority and the previously non-franchised cable operator must contain certain provisions and follow the standards as set forth by law or by guidelines as adopted by the Board. All franchising agreements must be filed with the Board and are subject to its review to ensure compliance.

10.10.3. 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 Board are null and void, and the Board may institute action under W. Va. Code § 5-18-26(e) to correct any omission in the contract, as well as prohibit enforcement of any unlawful or invalid contract provisions.

10.10.4. After considering all matters of record regarding a cable franchise application from a previously non-franchised cable operator, 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.

10.10.5. 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. § 187-1-10