West Virginia-2022-SB114-Introduced

The following terms, wherever used or referred to in this article, shall have the following meanings unless a different meaning clearly appears from the context:

(1) “Broadband developer” means a person selected by the secretary to acquire, construct, develop, or create any part of the broadband infrastructure.

(2) “Broadband infrastructure” means all facilities, hardware and software, and other intellectual property necessary to provide broadband services in this state, including, but not limited to, voice, video and data.

(3) “Broadband operator” means a person selected by the secretary to operate any part of the broadband infrastructure.

(4) “Broadband services” means the services, including, but not limited to, voice, video and data, that provide capacity for transmission in excess of two hundred kilobits per second in at least one direction, regardless of the technology or medium used, including, but not limited to, wireless, copper wire, fiber-optic cable or coaxial cable.

(5) “Department of Commerce” means the department within the executive branch of West Virginia state government, established by §5F-1-2(a)(8) of this code. It is headed by the Secretary of Commerce, who is appointed by the Governor with the advice and consent of the Senate.

(6) “E-business” means “electronic business” and includes any business process that relies on automated information systems that are principally performed with web-based technologies. E-business involves business processes spanning electronic purchasing and supply-chain management, the processing of orders electronically, the handling of customer service and cooperation with business partners. Special technical standards for e-business facilitate the exchange of data between companies. E-business software solutions allow the integration of intra- and inter-firm business processes. E-business can be conducted using the world wide web (web), the internet, intranets, extranets, or a combination of these tools.

(7) “E-commerce” means “electronic commerce” or any range of transactions that consists primarily of the distributing, buying, selling, marketing, and servicing of products or services over an electronic system such as the internet or other computer networks. The information technology industry may view this activity as an electronic business application aimed at commercial transactions. In this context, e-commerce can involve electronic funds transfer, supply-chain management, e-marketing, online marketing, online transaction processing, electronic data interchange (EDI), automated inventory management systems, and automated data collection systems. Electronic commerce typically uses the electronic communications technology of the world wide web at some point in the transaction’s lifecycle, although electronic commerce frequently depends on computer technologies other than the world wide web such as databases and e-mail and on other noncomputer technologies such as transportation for physical goods sold via e-commerce.

(8) “E-government” means “electronic government” or the use of telecommunications technology to facilitate and provide for access by the public to:

(A) Proceedings and operations of government;

(B) Records and information regarding the programs and services that are currently implemented or are to be proposed or discontinued by a governmental entity;

(C) Any records, not otherwise exempt by law from disclosure, that are kept by governmental entities and that would otherwise be available through nonweb-based means; and

(D) Transactions between the government and the public such as a citizen’s receipt and return of forms and applications, including, but not limited to, driver’s license applications, the payment of fines or penalties, or the filing of taxes. “E- government” also includes the use of telecommunications technology to facilitate and provide for exchanges of information between separate governmental entities, whether local, state or federal, and the use of videoconferencing to conduct governmental proceedings with remote participants, including, but not limited to, the establishment of telecourts that adequately provide for the protection of the constitutional rights and privileges of persons involved in civil or criminal litigation, such as arraignments, hearings, conferences, trials and appeals held before such tribunals, and allow for appropriate rulings to be made with dispatch.

(9) “E-learning” means “electronic learning” or the use of telecommunications technology to facilitate and provide education, through lectures or other instructional training, as well as providing access to stored knowledge and information and other learning resources. The most common application of e-learning is asynchronous e-learning which uses web-based learning modules but does not support real time interaction between the instructor and the students, and other asynchronous functions that typically support the learning environment. Synchronous e-learning requires more bandwidth than asynchronous e-learning and consists principally of on-line real-time lectures which typically have to be joined by students at the time of their delivery. Most demanding in terms of bandwidth are forms of collaborative e- learning in which students have to interact continuously to solve problems or engage in other learning activities.

(10) “E-media and entertainment” means “electronic media” that utilizes electronics or electromechanical energy for the end user (audience) to access the content. This is in contrast to static media (mainly print media), which is most often created electronically, but which does not require electronics to be accessed by the end user in the printed form. The primary electronic media sources familiar to the general public are better known as video recordings, audio recordings, multimedia presentations, slide presentations, CD-ROM, and online content. Most new media is in the form of digital media. However, electronic media may be in either analog or digital format. Although the term is usually associated with content recorded on a storage medium, recordings are not required for live broadcasting and online networking. Any equipment used in the electronic communication process (e.g. television, radio, telephone, desktop computer, game console, handheld device) may also be considered electronic media.

(11) “Facilitator” or “nonprofit facilitator” means a nonprofit corporation or any other lawfully constituted not-for- profit organization or entity that can:

(A) Ally itself with both public and private partners to form a strategic alliance with governmental entities, technology-minded companies, institutions of higher learning and any other public and private entities that support the growth and expansion of electronic access to technology, technology planning, public policy and public-relations; and

(B) Design a workforce recruitment plan that will necessarily be required to construct and implement the necessary broadband to which this state has committed, i.e., to provide access to the internet for all of the citizens of this state.

(12) “Information equipment” includes central processing units, front-end processing units, miniprocessors, microprocessors and related peripheral equipment such as data storage devices, networking equipment, services, routers, document scanners, data entry equipment, terminal controllers, data terminal equipment, and computer-based word processing systems other than memory typewriters;

(13) “Information systems” mean computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;

(14) “Information technology” means data processing and telecommunications hardware, software, services, supplies, personnel, maintenance and training and includes the programs and routines used to employ and control the capabilities of data processing hardware.

(15) “Local government” means any municipality, county, metro or regional government, entities, or affiliates of such entities, in the state of West Virginia.

(16) “Person” means an individual, corporation, limited or general partnership, joint venture, limited liability company or a government entity, including state authorities, municipalities, counties, police, fire and other public safety organizations, judicial entities, medical entities, schools, colleges, universities, hospitals, libraries, community centers and local economic development entities. Except to the extent that state authorities, police, fire, and other public safety organizations, judicial entities, medical entities, schools, colleges, universities, hospitals and libraries may constitute state entities, “person” does not include the State of West Virginia.

(17) “Public body” means a governmental entity or institution and its employees, including, but not limited to, any department, division, agency, bureau, board, commission, court of law in its nonjudicial functions only, council, institution, spending unit, authority or other instrumentality thereof of whatever description of the State of West Virginia, any county commission, any county board of education, any incorporated municipality, metro or regional government, or any other political subdivision;

(18) “Technology infrastructure” means information systems, information technology, information equipment and facilities, equipment, lines and services designed for or used for the transmission, emission or reception of signs, signals, writings, images or sounds of intelligence of any nature by wire, radio, microwave or other electromagnetic or optical systems, related hardware, software and programming and specifically including, but not limited to, all features, facilities, equipment, systems, functions, programming and capabilities and technical support used by:

(A) A cable operator;

(B) A commercial mobile service carrier;

(D) A satellite carrier;

(E) A telecommunications carrier;

(F) Any other wireless carrier, providing current generation broadband services or next generation broadband services to subscribers through such qualified equipment; or

(G) Any carrier or operator using any other technology.

(19) “Telecommuting” means not only telecommuting, but also includes or is related to “e-commuting”, “e-work”, “telework” or “working from home” through an arrangement under which the employee enjoys limited flexibility in working location and hours and avoids commuting to a central place of work by utilizing telecommunication links. Telework is a broader term, referring to substituting telecommunications for any form of work-related travel, thereby eliminating the distance restrictions of teleworking. A telecommuting program requires a management style which is based on results and not on close scrutiny of individual employees.

(20) “Telemedicine” means the use of telecommunications technology to facilitate and broaden the application of the practice of medicine, thus enabling healthcare providers to deliver health care services from a distance, including, but not limited to, diagnosis, consultation, treatment, transfer of medical data, use of remote medical instruments and equipment and generally establishing a convenient means of delivering medical services to patients for whom such services might otherwise be unavailable. In addition to clinical applications, telemedicine also includes web- based information and communications technology that can provide education (including continuing education programs) and reduce the administrative costs of health care providers.

(21) “West Virginia Development Office” means the executive branch agency within the Department of Commerce whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business, as described in §5B-2-1 of this code.

§5B-11-3. Legislative findings generally.

The Legislature finds as follows:

(1) It is a primary goal of this state, by the year 2024, to make every municipality, community and rural area in this state, border to border, accessible to the internet, through the expansion and extension of broadband services and technology.

(2) An increased availability of broadband technology will allow more West Virginians to connect with the “information super-highway” of the internet at high speeds. With present technology, West Virginia can feasibly take action to assure that all of its citizens will have access to broadband services through cable television or telephone networks that support two-way communications using cable modems or telephone lines and also by utilizing wireless mobile technologies, satellite transmissions and other means of communication. Ultimately, other means of achieving higher speed connections will be conceived, evolved and made available for use as conduits for the transmission and diffusion of data, information and knowledge. West Virginia must be positioned to be on the edge of each such development.

(3) Access to broadband services and the accompanying applications of broadband technology will provide the State of West Virginia with the capacity to foster or support new economic and social opportunities and developments locally, regionally, nationally, and internationally.

(4) In achieving this primary goal of maximizing internet accessibility, particular concerns of the Legislature and the executive branch of government should be concentrated on and directed toward those of our citizens who are located in rural areas of the state where access appears to be geographically or physically difficult or economically impracticable. An idealized achievement of this primary goal would equalize internet availability to all of our citizens and communities, give them access to the internet regardless of their location, provide them with the knowledge, information, and technology available on the internet and expose them to a myriad of other broadband digital applications and services with their attendant benefits.

(5) The development of broadband and its diffusion to residential subscribers is still in the early stages and the market is far from mature. The expansion of broadband into unserved areas of the state requires capital investments for financing, for building the appropriate broadband infrastructure, and for providing the services and applications that can carry high-speed data, quality video, and voice traffic. Deployment costs are high, particularly in remote and scarcely populated areas. In these circumstances, private operators often do not offer broadband because it is not perceived as profitable to do so. This presents a territorial gap in broadband coverage, with urban households and businesses having ready options and access to broadband while rural population areas may have no options for access. Moreover, in rural areas, broadband speeds, if available, tend to be slower and prices tend to be higher, thus discouraging the use by rural consumers of more technically advanced services.

(6) The primary goal of subdivision (1) of this section may be achieved by the legislative and executive branches of state government by:

(A) Aggressively expanding and extending broadband and other telecommunications services;

(B) Creating incentives for private and nonprofit entities to establish broadband and other telecommunications services;

(C) Undertaking telecommunications planning at the local, regional and state levels and requiring that in such planning, that the participants shall include:

(i) citizens and organizations representing and speaking on behalf of the public;

(ii) officers of, or spokesmen for, any involved or affected governmental body; and

(iii) representatives of various private sectors, including, but not limited to, representatives of industry and commerce, healthcare and education and research;

(D) Removing barriers to the full deployment of broadband digital applications and services and providing incentives for the removal of those barriers; and

(E) Removing barriers to public-private partnerships in areas of the state where business entities in the private sector are unable to economically justify capital investments in the broadband infrastructure.

(7) There is little doubt that rapid growth of the internet is increasingly altering and driving our country in terms of commerce, learning, medicine, and other fields so that information technology offers increased economic opportunities, higher living standards, increased health, better education, more individual choices and wider and more meaningful participation in government and public life. The past decade has brought considerable advancement in telecommunications and the way people communicate worldwide. Accordingly, telecommunications in general, and the internet in particular, are becoming increasingly important to the efficient and effective operation of both private and public sector entities. With the advent of the internet and its applications to e-business, e-commerce, e-government, telemedicine, e-learning, telecommuting, and media and entertainment, the ability of people in all parts of this state to access the internet has become an important component in the ability of the state and its people and institutions to remain competitive in the information-based global economy.

§5B-11-4. Legislative findings related to business, commerce and industry.

With regard to the projected impact of internet access on business, commerce and industry, the Legislature finds that there is a need to create and develop a foundation and structure for “e-business”, or “electronic business”, as defined in §5B-11-2 of this code and for “e-commerce” or “electronic commerce” as defined in §5B-11-2 of this code.

(1) That a private nonprofit facilitator, in partnership with government and private enterprise, will best enable the implementation of a legislative plan to expand and extend the boundaries of technology-based business and enhance West Virginia’s future workforce;

(2) That a broadband alliance formed by a nonprofit facilitator and other entities should be focused on building and sustaining a vital West Virginia economy through job creation and improved business processes, technology, education, and advocacy;

(3) That a significant part of the mission of a nonprofit facilitator is to promote technology-based economic development for the state by fostering collaboration among the leadership of public and private companies, government agencies and institutions of higher education and that by working with these entities the private nonprofit facilitator will enable the State of West Virginia to create more effective manufacturing processes, improve communications, increase efficiency, expand market opportunities and develop corporate growth strategies;

(4) That our modern economy is driven by processes and goods with high technical content and superiority, competitiveness and progress and such an economy relies upon a highly trained technical workforce.

(5) That in the face of growing evidence that the dominance of our national economy is eroding, we must assume that West Virginia’s ability to compete is also eroding and that in the competition for economic development and quality jobs, West Virginia must therefore be innovative and must sharpen its edge as a competitor;

(6) That the citizens of West Virginia now live and work in the midst of an economic and cultural environment that connects the world through advanced communications and information technology and, accordingly, progressive policies and the innovative use of technology present the State of West Virginia with an opportunity to thrive in this new environment;

(7) That in order to compete and thrive, West Virginia must proactively improve the ability of its citizens and businesses to adopt and use advantageous resources;

(8) That the use of computers, the Internet and related technologies advance the development of the skills that fuel a progressive economy and, increasingly, companies will choose locations and hire workers based upon the availability of workers who possess technologically centric skills and resources.

§5B-11-5. Legislative findings related to access to government.

(a) The state encourages the coordinated deployment and operation of technology infrastructure for present and future use. Therefore, it is necessary for the state to maintain an ongoing, continually updated record of the nature and extent of its technology infrastructure comprised of information systems, information equipment and information technology, the demands on its technology infrastructure and those governmental entities which use or desire to use the resources of the technology infrastructure providing information services, cable service, advanced services, broadband services, internet, internet protocol enabled services, telecommunications services or similar services or support.

(b) The Secretary of the Department of Administration shall develop systems and processes for maintaining accurate information on the state of the technology infrastructure in the state on an ongoing basis and conduct an infrastructure resources survey of the deployment and operation of technology infrastructure in this state. The secretary shall determine the form and format of the information submitted, including the use of electronic submissions.

(c) To facilitate the infrastructure resources survey the Secretary of the Department of Administration shall propose emergency and legislative rules in accordance with §29A-3-1 et seq. of this code. These rules may include:

(1) The manner of reporting the information;

(2) Promulgation of a form or forms for reporting purposes;

(3) A means of providing training to individuals responsible for the completion and submission of the information on the proposed form;

(4) A means of reporting back to individual participating public bodies, from time to time, at the request of a public body, on findings specific to that body to allow the public body to evaluate independently the information provided;

(5) A limitation that the information is to be used solely for the purposes of this article;

(6) Safeguards to protect the confidential information as provided in §5B-11-4 of this code;

(7) Methodology for collection of information and the analysis of the information;

(8) Protocols for an annual update of the infrastructure resources survey including information collection, analysis, and reporting thereof by the Department of Administration.

(d) Every public body shall complete an infrastructure resources survey no later than October 1, 2022, and a survey each year thereafter as provided in rules promulgated pursuant to this section.

(e) The secretary shall file annually a report with the Joint Legislative Oversight Commission on Transportation and Infrastructure created in section five of this article. The report shall generally advise the Joint Oversight Commission on Transportation and Infrastructure about the deployment and operation of technology infrastructure in this state and to make recommendations on policy and statutory changes that may be needed. The report shall include a discussion of each of the following:

(1) The connectivity, priorities, and interoperability of the technology infrastructure owned, leased or used by public bodies;

(2) The technology infrastructure that is owned, leased, operated or used by the public bodies of the state;

(3) Technology infrastructure as it affects homeland security, public safety and health, systems reliability and providing continuity of government operations;

(4) Technology infrastructure identifying potential market demand areas where expanded resources may be expected;

(5) Practices or suggestions to coordinate development of infrastructure related to technology infrastructure and the deployment of services between the public bodies through the coordinated delivery of these systems; and

(6) Any other topic that may be beneficial in adequately assessing technology infrastructure.

(f) To the extent technology infrastructure information is readily provided by private persons or otherwise available, the secretary shall utilize and incorporate that data to fulfill the reporting requirements of this section.

(g) The provisions of this section shall be of no force or effect after December 31, 2024.

(a) The secretary shall enhance well-being, prosperity, economic growth and community development through the ongoing study and research into and development of best known methods regarding the management practices, human factors, and cultural changes related to the implementation, operation and utilization of technology, technology infrastructure and related services. For the purposes of this section, “best known methods” refers to plans that outline strategies and activities designed to continue, diversify or expand the economic base of the state as a whole; create jobs; develop a highly capable workforce; enhance productivity; facilitate business access to capital, including venture capital and capital markets; advertise and market the resources offered by the state with respect to the technology needs of business and industry; facilitate cooperation among state government, entrepreneurship efforts, public-private partnerships, universities and colleges; and leverage funding from sources other than the state, including federal and private sources.

(b) Upon completion of a study of best known methods in private industry and public policy, the chief officer shall file an initial preliminary report with the Joint Legislative Oversight Commission on Transportation and Infrastructure created in §5B-11-10 of this code no later than November 1, 2022. The report shall include consideration of the following:

(1) Strategies and activities designed to continue, diversify or expand the resources offered by the state with respect to the technology needs of business and industry;

(2) Strategies to facilitate cooperation among state government, local government, entrepreneurship efforts, public-private partnerships and colleges and universities, with respect to the technology needs of business and industry;

(3) Management and utilization of technology infrastructure identifying potential growth areas where expanded resources may be expected;

(4) Practices or methods to coordinate development and utilization of technology infrastructure and the deployment of technology infrastructure and related technology between public bodies through the coordinated delivery of these systems; and

(5) Any other information that may be beneficial in adequately assessing technology available in determining the need for and the preparation of technology infrastructure plans.

(6) The secretary shall report annually to the Joint Oversight Commission on Transportation and Infrastructure to advise the commission about the deployment and operation of technology infrastructure in this state and to make recommendations on policy and statutory changes that may be needed.

(c) In developing its study, the department shall consider resources and technical support available through other agencies, both public and private, including, but not limited to, the state college and university systems; the West Virginia Housing Development Fund; the Consumer Advocates Office of the Public Service Commission; the West Virginia Economic Development Authority; the West Virginia Parkways, Economic Development and Tourism Authority; the West Virginia Chamber of Commerce; regional planning and development councils; for progress councils; and state appropriations. The Infrastructure and Jobs Development Council, as created by the provisions of §31-15A-3 of this code, is also included with the above-named agencies and entities, inasmuch as the broadband infrastructure project or projects to be undertaken under the provisions of this article are within the definition of the term “infrastructure project” as it is defined in §31-15A-2(l) of this code.

§5B-11-13. Providing technical and funding assistance to develop technology infrastructure; contractual and joint venture agreements.

The Legislature finds as follows:

(1) There is a commitment by state government to make every community and rural area in this state, border to border, accessible to broadband services by the year 2024.

(2) Access to broadband services and the accompanying applications of broadband technology will provide the State of West Virginia with the economic and social capacity to support new opportunities and developments locally, regionally, nationally and internationally.

(3) The expansion of broadband into unserved areas of the state requires capital investments for financing and building the appropriate broadband infrastructure and for providing the services and applications that can carry high-speed data, as well as quality video and voice traffic.

(4) Developing and utilizing broadband applications that will allow internet users to interact with educational programs (e-learning) and to connect with other online databases, such as e-commerce and telemedicine, will require capital investments and the commitment of other resources, both public and private, in these new and evolving information and communication technologies.

(5) The Electronic Telecommunication Open Infrastructure Act (ETOPIA), created in §5B-11-1 et seq. of this code has been enacted to support the conception and implementation of infrastructure and technology through nonprofit corporations, in partnership and cooperation with providers of broadband services and with the support of the West Virginia Department of Commerce and other agencies of state government.

(6) Establishing a broadband connection at a local school will enable students to gain access, in the classroom, to the knowledge and resources available on the internet, and through high-speed cable, DSL, wireless or other means, will enable students access outside of the classroom. And, importantly, broadband infrastructure will enable a school to provide interactive programs that project information and training related to early childhood development directly into the homes and families of children, zero to eight, in the school’s community.

(7) Mandating that the availability of broadband access is a public or private service for all communities and rural areas in this state requires recognition that the ongoing financial support and resources of governmental and private entities must include the costs of providing such access within their support and funding for education, social services, administration, etc.

(8) Public and private entities, in executing the provisions of ETOPIA as set forth in §5B-11-1 et seq. of this code should be supported in their efforts to continue developing and providing broadband infrastructure, information technologies and appropriate applications of technologies. As those efforts impact the area of early childhood development, ETOPIA should be implemented in cooperation and partnership with programs conceived and designed by the West Virginia Kids First Board.

§18-34-2. Duties of state departments and agencies.