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2002 SESSION
025597820Be it enacted by the General Assembly of Virginia:
1. That §§ 15.2-1500, 56-484.7:1 and 56-484.7:2 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 5.1 of Chapter 15 of Title 56 a section numbered 56-484.7:4 as follows:
§ 15.2-1500. Organization of local government.
A. Every locality shall provide for all the governmental functions of the locality, including, without limitation, the organization of all departments, offices, boards, commissions and agencies of government, and the organizational structure thereof, which are necessary and the employment of the officers and other employees needed to carry out the functions of government.
B. Notwithstanding any other provision of law, general or special, no locality
shall establish any department, office, board, commission, agency or other
governmental division or entity which has authority to offer telecommunications
equipment, infrastructure, other than pole or tower attachments including
antennas or conduit occupancy, or services, other than intragovernmental radio
dispatch or paging systems shared by adjoining localities, for sale or lease to
any person or entity other than (i) such locality's departments, offices,
boards, commissions, agencies or other governmental divisions or entities or
(ii) an adjoining locality's departments, offices, boards, commissions,
agencies or other governmental divisions or entities, so long as any charges
for such telecommunications equipment, infrastructure and services do not
exceed the cost to the providing locality of providing such equipment,
infrastructure or services. However, any town which is located adjacent to Exit
17 on Interstate 81 and which offered telecommunications services to the public
on January 1, 1998, is hereby authorized to continue to offer such
telecommunications services, but shall not acquire by eminent domain the
facilities or other property of any telephone company or cable operator. Any
locality may sell any telecommunications infrastructure, including related
equipment, which that such locality hadhas constructed prior to September 1,
1998, and such locality may receive from the purchaser or purchasers, as full
or partial consideration for the sale of such infrastructure, communications services
to be used solely for internal use of the locality. Any locality which sells
such infrastructure, including related equipment, may, at its option, exclude the
incumbent local exchange carrier from the bid or other sale process.The
locality shall not be involved in any way in the promotion or marketing of services
provided by any purchaser.
C. Notwithstanding the provisions of subsection B, a locality, electric
commission or board, industrial development authority, or economic development
authority, may lease dark fiber pursuant to § 56-484.7:1. For purposes of this
section, "dark fiber" means fiber optic cable which is not lighted by lasers or other
electronic equipment. The price for such lease may include reasonable
provisions for the recovery of the cost of the network and installation of
additional fiber and related facilities to complete the lessor's network but
shall not be related to the revenue or profit of the lessee. The lessor may
recover costs of constructing such leased network and any extensions or
improvements thereto; however, such lessor may not profit from the leasing of
such facilities. The lease may require the lessee to make additional
investments in the lessee's facilities based on such factors as the number of
customers, market share, the lessee's revenue or the lessee's profit. Any such
extension or improvements constructed by a lessee shall remain the property of
the lessee; however, the lessee may be required to provide dedicated use to the
lessor for the lessor's own internal purposes for the life of the fiber. The
locality, electric commission or board, industrial development authority, or
economic development authority, shall not be involved in the promotion or
marketing of the lessee as the provider of the services. in certain underserved
areas as determined pursuant to § 56-484.7:2, may offer qualifying
communications services, or enter into public-private partnerships to offer such
qualifying communications services, in accordance with the provisions of Article 5.1
(§ 56-484.7:1 et seq.) of Chapter 15 of Title 56.
§ 56-484.7:1. Certain localities, electric commissions or boards, industrial development authorities, or economic development authorities may offer qualifying communications services.
Notwithstanding the provisions of § 15.2-1500, a county, city, town, electric
commission or board, industrial development authority, or economic development
authority may lease on nondiscriminatory terms, for a term not to exceed ten
years, dark fiber, as that term is defined in subsection C of § 15.2-1500, to
one or more certificated local exchange telephone companies and to not-for-profit
educational schools and institutions, hospitals, health clinics and medical
facilities for use in serving their not-for-profit purposes. Any such lease
must specify the qualifying telecommunications service to be offered by the
lessee and the geographic area in which that service will be offered. offer
qualifying communications services, or enter into public-private partnerships to offer
such qualifying communications services, in accordance with the provisions of this
article. For purposes of this sectionarticle, a "qualifying telecommunications
communications service" is a telecommunications communications service, which
shall include, but is not limited to, high-speed data service and Internet
access service, of general application to be offered by the lessee , which is
not otherwise generally and competitively available in the geographic area in
which the service will be offered by an entity other than an entity leasing
from the, but which shall exclude cable television service. The county, city,
town, electric commission or board, industrial development authority, or economic development
authority. Such lessee shall not be prohibited from offering authorized
telecommunications services in addition to the qualifying telecommunications service
over the leased facilities. shall demonstrate in its petition that the
qualifying communications services do not meet the standard set forth in §
56-484.7:2 within the geographic area specified in the petition. No such lease
shall be effective services may be offered unless, prior to entering into such
lease offering such services: (i) the proposed lessee county, city, town,
electric commission or board, industrial development authority, or economic
development authority petitions the State Corporation Commission to
approve such lease of the dark fiber the offering of such qualifying
communications services within a specified geographic area and (ii) the
Commission, after notice and an opportunity for hearing in the affected area, issues
a written order approving the lease petition or fails to approve or disapprove
the lease petition within sixty days after notice. The sixty-day period may be
extended by Commission order for a period not to exceed an additional sixty days.
The lease petition shall be deemed approved if the Commission fails to act
within sixty days after notice or any extended period ordered by the Commission.
§ 56-484.7:2. Factors for approval.
The State Corporation Commission shall find that it is in the public interest
to approve the lease of dark fiber offering of qualifying communications
services as specified in § 56-484.7:1 unless it shall be demonstrated to the
Commission and found that, within the geographic area to be served by the
leasespecified in the petition: (i) the lease proposed services will
not promote the provision of competitive communications service within the geographic
area; (ii) the lease proposed services will not enhance economic
development; (iii) the qualifying telecommunications communications service
specified in its lease the petition as provided for in § 56-484.7:1 is, or
functional substitutes therefor, is readily and generally available from three
or more nonaffiliated certificated local exchange companies, not including any
lessee; (iv)(ii) the lease petition is not in compliance with the requirements
of § 56-484.7:1; or (v)(iii) the lease offering of the proposed qualifying
communications services will not benefit consumers. The factor stated in clause
(iii) shall not apply to leases of dark fiber filed for approval within five years of the
Commission's approval of the first lease of dark fiber by that county, city,
town, electric commission or board, industrial development authority, or
economic development authority.
§ 56-484.7:4. Revocation of Commission approval.
The Commission may revoke its approval of a petition under § 56-484.7:1 no earlier than five years after such approval if it finds (i) that the factors described in § 56-484.7:2 on which the approval was based no longer exist or are no longer being satisfied, or (ii) that the petitioner has not made satisfactory progress toward making generally available the qualifying communications services specified in the petition. If the Commission finds that such approval should be revoked, it shall determine a date by which the county, city, town, electric commission or board, or authority shall cease to offer such qualifying communications services. In determining such date the Commission shall allow a reasonable time for the entity to offer its equipment, infrastructure and other assets related to such qualifying communications services for sale at fair market value. The provisions of this section shall not apply to the use of telecommunications equipment and services for intragovernmental purposes as specified in § 15.2-1500.
2. That § 56-484.7:3 of the Code of Virginia is repealed.