HB1329: Communication towers, state-owned; wireless broadband service in unserved areas.


HOUSE BILL NO. 1329
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on General Laws
on February 5, 2008)
(Patron Prior to Substitute--Delegate Peace)
A BILL to amend and reenact §§ 2.2-1150.1 and 2.2-1151 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 2.2-1150.2, relating to the use of communications towers owned by the Commonwealth for the deployment of wireless broadband service in unserved areas.

Be it enacted by the General Assembly of Virginia:

1.  That §§ 2.2-1150.1 and 2.2-1151 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 2.2-1150.2 as follows:

§ 2.2-1150.1. Lease or conveyance of any interest in State Police communication tower.

In-kind goods or services received from lease agreements or conveyances of any interest in Department of State Police communication towers or sites received pursuant to §§ 2.2-1150.2 and 2.2-1151, above the costs of the transaction, shall be retained by the department pursuant to § 2.2-1150 and used in the operation, acquisition, maintenance, construction or replacement of communication towers, sites, and systems of the department. The provisions of § 2.2-1156 as they apply to lease agreements or conveyances of any interest shall not apply to any transaction undertaken pursuant to this section.

§ 2.2-1150.2. Use of communication towers for deployment of wireless broadband services in unserved areas of the Commonwealth.

A. As used in this section:

"Qualified provider" means a provider of wireless broadband service that has obtained all governmental approvals required for the provision of wireless broadband service in the unserved area in which it seeks to provide such service.

"Unserved area" means any area within the Commonwealth that can demonstrate it does not have access to terrestrial or radio frequency broadband Internet service.

"Wireless broadband service" means an Internet connection service capable of transmitting information at a rate that is not less than 256 kilobits per second in at least one direction using a wireless link between a fixed location and the Internet service provider’s facility. It shall not include wireless fidelity technology used in conjunction with dedicated subscriber line service or cable service to connect devices within a facility to the Internet via a broadband connection.

B. Notwithstanding any provision of § 2.2-1156 to the contrary, any state department, agency, or institution having responsibility for a state-owned communication tower in an unserved area, subject to guidelines adopted by the Department, shall lease or convey a license or other interest in the communication tower to a qualified provider in order to permit the use of the communication tower in deployment of wireless broadband service by the qualified provider within the unserved area or portion thereof; provided the qualified provider presents to the Department a spectrum and certified structural analysis of the tower demonstrating that (i) the new service will not interfere with the current equipment, (ii) no structural element is beyond 85 percent capacity based on current and previously documented future loads, and (iii) the new service meets the industry standards set forth in ANSI/TIA/EIA 222 F. The qualified provider shall also submit proof to the Department of having satisfied all applicable local government requirements.

C. The Department shall adopt guidelines for (i) determining whether a provider of wireless broadband service is qualified to provide such service and (ii) requesting a state department, agency, or institution to enter into a lease or other conveyance of an interest in a communication tower pursuant to this section. 

D. The lease or other conveyance shall be for such consideration as the Director of the Department deems appropriate, and that shall be commensurate with the consideration paid for use of comparable space on similar towers or sites. The lease or other conveyance may include shared use of the facilities by other political subdivisions or persons providing the same or similar services, and by departments, agencies, or institutions of the Commonwealth.

E. The provisions of § 2.2-1156 as they apply to lease agreements or conveyances of any interest shall not apply to any transaction undertaken pursuant to this section.

F. No transaction authorized by this section shall be made without the prior approval of the Director of the Department and the approval of the Attorney General as to the form of any conveyancing instrument prior to execution.

§ 2.2-1151. Conveyance of easements and appurtenances thereto to cable television companies, utility companies, public service companies, political subdivisions by state departments, agencies or institutions; communication towers.

A. Any state department, agency or institution, through its executive head or governing board may convey to public utility companies, public service corporations or companies, political subdivisions or cable television companies, right-of-way easements over property owned by the Commonwealth and held in its possession and any wires, pipes, conduits, fittings, supports and appurtenances thereto for the transmission of electricity, telephone, cable television, water, gas, steam, or sewage placed on, over or under the property for such consideration as the executive head or governing board of the agency deems proper, when such conveyance is deemed to be in the public interest.

B. Any state department, agency or institution having responsibility for a state-owned office building, through its executive head or governing board, may lease space to a credit union in the building for the purpose of providing credit union services that are readily accessible to state employees. The lease shall be for a term of not more than five years, with annual renewals or new leases permitted thereafter. The department, agency or institution responsible for the building may forego all rent or charge less than the fair market value.

C. When it is deemed to be in the public interest, and subject to guidelines adopted by the Department, property owned by the Commonwealth may be sold or leased or other interests or rights therein granted or conveyed to political subdivisions or persons providing communication or information services for the purpose of erecting, operating, using or maintaining communication towers, antennas, or other radio distribution devices. If any tower proposed to be erected on property owned by the Commonwealth is to be used solely by private persons providing communication or information services, and there is no immediate use planned or anticipated by any department, agency or institution of the Commonwealth or political subdivision, the guidelines shall provide a means to obtain comments from the local governing body where the property is located. The conveyances shall be for such consideration as the Director of the Department deems appropriate, and may include shared use of the facilities by other political subdivisions or persons providing the same or similar services, and by departments, agencies, or institutions of the Commonwealth.

D. No transaction authorized by this section shall be made without the prior written recommendation of the Department to the Governor, the written approval of the Governor of the transaction itself, and the approval of the Attorney General as to the form of the instruments prior to execution.

E. This section shall not apply to any lease or conveyance of a license or other interest in a communication tower for use in the deployment of wireless broadband service within an unserved area of the Commonwealth made pursuant to § 2.2-1150.2. Nor shall this section be construed to alter the control or ownership of towers currently maintained by other agencies in the Commonwealth.

HOUSE BILL NO. 1329
Offered January 9, 2008
Prefiled January 9, 2008
A BILL to amend and reenact §§ 2.2-1150.1 and 2.2-1151 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 2.2-1150.2, relating to the use of communications towers owned by the Commonwealth for the deployment of wireless broadband service in underserved areas.
Patron-- Peace

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1.  That §§ 2.2-1150.1 and 2.2-1151 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 2.2-1150.2 as follows:

§ 2.2-1150.1. Lease or conveyance of any interest in State Police communication tower or site.

In-kind goods or services received from lease agreements or conveyances of any interest in Department of State Police communication towers or sites received pursuant to §§ 2.2-1150.2 and 2.2-1151, above the costs of the transaction, shall be retained by the department pursuant to § 2.2-1150 and used in the operation, acquisition, maintenance, construction or replacement of communication towers, sites, and systems of the department. The provisions of § 2.2-1156 as they apply to lease agreements or conveyances of any interest shall not apply to any transaction undertaken pursuant to this section.

§ 2.2-1150.2. Use of communication towers for deployment of wireless broadband services in underserved areas of the Commonwealth.

A. As used in this section:

"Qualified provider" means a provider of wireless broadband service that has (i) obtained all governmental approvals required for the provision of wireless broadband service in the underserved area in which it seeks to provide such service and (ii) been found by the Director of the Department to be technically and financially qualified to provide reliable wireless broadband service in such underserved area.

"Underserved area" means any area within the Commonwealth that is found by the Department, as of the date it makes such finding, (i) to not have access to broadband Internet service or (ii) to have access to broadband Internet service that lacks adequate capacity, reliability, or quality to meet the area's current or projected needs.

"Wireless broadband service" means an Internet connection service capable of transmitting information at a rate that is generally not less than 256 kilobits per second in at least one direction using a wireless link between a fixed location and the Internet service provider’s facility. It does not include wireless fidelity technology used in conjunction with dedicated subscriber line service or cable service to connect devices within a facility to the Internet via a broadband connection.

B. Notwithstanding any provision of § 2.2-1156 to the contrary, any state department, agency, or institution having responsibility for a state-owned communication tower or site in an underserved area, subject to guidelines adopted by the Department, shall lease or convey a license or other interest in the communication tower or site to a qualified provider, in order to permit the use of the communication tower or site in its deployment of wireless broadband service by the qualified provider within the underserved area or portion thereof.

C. The Department shall adopt guidelines for its determination of whether a provider of wireless broadband service is qualified and for requesting a state department, agency, or institution to enter into a lease or other conveyance of an interest in a communication tower or site pursuant to this section.

D. The lease or other conveyance shall be for such consideration as the Director of the Department deems appropriate, and that shall be commensurate with the consideration paid for use of comparable space on similar towers or sites. The lease or other conveyance may include shared use of the facilities by other political subdivisions or persons providing the same or similar services, and by departments, agencies, or institutions of the Commonwealth.

E. The provisions of § 2.2-1156 as they apply to lease agreements or conveyances of any interest shall not apply to any transaction undertaken pursuant to this section.

F. No transaction authorized by this section shall be made without the prior approval of the Director of the Department and the approval of the Attorney General as to the form of any conveyancing instrument prior to execution.

§ 2.2-1151. Conveyance of easements and appurtenances thereto to cable television companies, utility companies, public service companies, political subdivisions by state departments, agencies or institutions; communication towers.

A. Any state department, agency or institution, through its executive head or governing board may convey to public utility companies, public service corporations or companies, political subdivisions or cable television companies, right-of-way easements over property owned by the Commonwealth and held in its possession and any wires, pipes, conduits, fittings, supports and appurtenances thereto for the transmission of electricity, telephone, cable television, water, gas, steam, or sewage placed on, over or under the property for such consideration as the executive head or governing board of the agency deems proper, when such conveyance is deemed to be in the public interest.

B. Any state department, agency or institution having responsibility for a state-owned office building, through its executive head or governing board, may lease space to a credit union in the building for the purpose of providing credit union services that are readily accessible to state employees. The lease shall be for a term of not more than five years, with annual renewals or new leases permitted thereafter. The department, agency or institution responsible for the building may forego all rent or charge less than the fair market value.

C. When it is deemed to be in the public interest, and subject to guidelines adopted by the Department, property owned by the Commonwealth may be sold or leased or other interests or rights therein granted or conveyed to political subdivisions or persons providing communication or information services for the purpose of erecting, operating, using or maintaining communication towers, antennas, or other radio distribution devices. If any tower proposed to be erected on property owned by the Commonwealth is to be used solely by private persons providing communication or information services, and there is no immediate use planned or anticipated by any department, agency or institution of the Commonwealth or political subdivision, the guidelines shall provide a means to obtain comments from the local governing body where the property is located. The conveyances shall be for such consideration as the Director of the Department deems appropriate, and may include shared use of the facilities by other political subdivisions or persons providing the same or similar services, and by departments, agencies, or institutions of the Commonwealth.

D. No transaction authorized by this section shall be made without the prior written recommendation of the Department to the Governor, the written approval of the Governor of the transaction itself, and the approval of the Attorney General as to the form of the instruments prior to execution.

E. This section shall not apply to any lease or conveyance of a license or other interest in a communication tower or site for use in the deployment of wireless broadband service within an underserved area of the Commonwealth made pursuant to § 2.2-1150.2.