[Federal Register Volume 62, Number 156 (Wednesday, August 13, 1997)]
[Pages 43329-43330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21372]



[FCC 97-264]

Supplemental Pleading Cycle Established for Comments on Petition 
for Declaratory Ruling of the Cellular Telecommunications Industry 

Released: July 28, 1997.
    On December 16, 1996, the Cellular Telecommunications Industry 
Association (CTIA) filed a Petition for Declaratory Ruling (``CTIA 
Petition'') requesting that the Commission preempt moratoria imposed by 
state and local governments on the siting of telecommunications 
facilities. On December 18, 1996, the Wireless Telecommunications 
Bureau issued a public notice, 62 FR 04047 (January 28, 1997), seeking 
comment on the CTIA Petition. CTIA and the supporting commenters 
contend that the Commission has the jurisdiction under Section 253(a) 
and 332(c)(3) of the Communications Act to preempt local siting 
moratoria because such moratoria are not individual land use 
``decisions'' or ``disputes,'' which Congress has stated are to be 
reviewed by the courts under Section 332(c)(7) of the Communications 
Act, but rather are blanket ordinances that act as barriers to entry.
    Following the submission of the comments on the CTIA Petition, 
representatives from CTIA and four wireless companies made ex parte 
presentations in which they raised additional issues and arguments. In 
the ex parte presentations, the representatives recommended that the 
Commission adopt guidelines for local moratoria. Specifically, they 
asked that we find that:
    (1) All siting moratoria that exceed 90 days (current and 
prospective) are invalid and preempted as impermissible entry 
regulation of Commercial Mobile Radio Services (CMRS).
    (2) Moratoria of open-ended duration constitute per se violations 
of Sections 253(a) and 332(c)(3) of the Communications Act.
    (3) Moratoria that preclude the filing and processing of 
applications constitute per se violations.
    (4) Moratoria that discriminate against new CMRS providers by 
allowing certain CMRS licensees to build and modify facilities while 
new entrants are precluded from deploying services should be declared 
per se invalid entry regulation.
    (5) Moratoria based directly or indirectly on radiofrequency (RF) 
emissions and related health concerns should be per se preempted.
    The Commission also received numerous comments and other ex parte 
filings arguing that the Commission does not have the jurisdiction to 
preempt state and local siting moratoria. Most recently, on July 15, 
1997, the Commission's Local and State Government Advisory Committee 
(LSGAC) submitted an ex parte letter in which it argued that Congress 
had made clear its intent to protect state and local authority over the 
siting of personal wireless service facilities from interference by the 
Commission. LSGAC argued that neither Section 332(c)(3)(A) nor Section 
253 of the Communications Act govern the adoption of siting moratoria 
by local governments. LSGAC contends that Section 332(c)(7) of the 
Communications Act provides that it is the only section of the Act that 
affects local land use authority over personal wireless service 
facilities and that Section 332(c)(7) reserves to courts of competent 
jurisdiction the settlement of local zoning disputes.
    Based on our review of the record received in response to the CTIA 
Petition and the subsequent ex parte filings, we tentatively conclude 
that, pursuant to Sections 253(d) and 332(c)(3) of the Communications 
Act, we have the authority to consider whether local facility siting 
moratoria may prohibit or have the effect of prohibiting the ability of 
wireless service providers to offer service in violation of Section 
253(a) or whether moratoria constitute local regulation of CMRS entry 
prohibited by Section 332(c)(3). We recognize that, pursuant to Section 
332(c)(7)(B)(v), parties adversely affected by decisions regarding the 
placement, construction, and modification of personal wireless service 
facilities that are inconsistent with the limitations set forth in 
Sections 332(c)(7)(B)(i)-(iii) are directed to seek relief from a 
``court of competent jurisdiction.'' We believe that Section 
332(c)(7)(B)(v) does not, however, limit our authority to review local 
facility siting moratoria which may constitute entry barriers under 
Sections 253(d) or entry regulations under 332(c)(3). In this regard, 
certain moratoria, especially moratoria of unlimited duration, may 
constitute impermissible CMRS entry regulation or may prohibit or have 
the effect of prohibiting CMRS entry into a local marketplace. 
Accordingly, to the extent that moratoria of unlimited or unspecified 
duration may constitute barriers to the provision of telecommunications 
services, we believe that we have the jurisdiction to preclude such 
moratoria under Section

[[Page 43330]]

253(d) of the Communications Act and to the extent that such moratoria 
may constitute prohibited CMRS entry regulation, we believe that we 
have the jurisdiction to preclude them under Section 332(c)(3). In this 
regard, we tentatively conclude that moratoria that do not specify any 
fixed length of duration are not ``decisions'' regarding the placement, 
construction and modification of personal wireless facilities which, 
pursuant to Section 332(c)(7)(A) of the Communications Act, are subject 
to review by the courts. At the same time, we recognize that a 
moratorium of a fixed duration, which permits local officials a 
reasonable period of time to study and develop a process for handling 
wireless siting requests may be a legitimate exercise of local land use 
authority which may benefit all parties. Therefore, we tentatively 
conclude that Sections 253(d) and 332(c)(3) do not preclude all local 
facilities siting moratoria and that some moratoria of a relatively 
short and fixed duration may serve the public interest.
    Through this supplemental public notice, we tentatively conclude 
that we should preclude local facilities siting moratoria of unlimited 
or unspecified duration as impermissible CMRS entry regulation in 
violation of Section 332(c)(3) or barriers to entry under Section 
253(a) and seek comment on this tentative conclusion. We also seek 
comment on whether moratoria of a specified duration, but which exceed 
a certain length of time, may also constitute impermissible barriers to 
entry or CMRS entry regulation. If so, at what length of time do 
moratoria become barriers to entry? We note that CTIA and the 
supporting parties have argued that moratoria should not exceed 90 
days. In Sprint Spectrum, L.P. v. City of Medina, a federal district 
court found that a city's six month moratorium on the issuance of new 
special use permits for wireless communications facilities did not 
violate Section 332(c)(3) or 332(c)(7)(A) of the Communications Act. We 
seek comment as to what constitutes a reasonable period of time to 
permit local land use authorities to organize their siting efforts and 
analyze the situation. We request that all commenters supporting a 
specific length of time provide a detailed justification for that 
length of time, and we request that state and local governments 
advocating moratoria of a certain length of time include evidence as to 
the length of time it has taken historically to develop a process for 
handling wireless siting requests. We seek to determine also whether 
such limits should be applied to all existing moratoria or only to 
moratoria that are adopted in the future.
    In addition, we seek comment as to whether moratoria that are 
imposed only against the siting of wireless facilities of new CMRS 
entrants but that permit existing CMRS operators to construct or modify 
facilities are consistent with Sections 253(a) and 332(c)(3) of the 
Communications Act. We seek to determine whether such disparate 
treatment constitutes discrimination against new CMRS providers and is, 
therefore, invalid entry regulation, or prohibits or has the effect of 
prohibiting entry.
    Finally, we tentatively conclude that moratoria that would 
otherwise comply with the above-outlined limitations may violate 
Section 332(c)(7)(B)(iv) of the Communications Act if they are based 
upon concerns regarding the environmental effects of RF emissions. We 
seek comment on this tentative conclusion.
    Interested parties should file comments on the issues raised in 
this Public Notice on or before September 11, 1997, and should file 
reply comments on or before September 26, 1997. Comments and reply 
comments must be filed with the Secretary, FCC 1919 M Street, N.W., 
Washington, DC 20554. One copy of comments and reply comments should be 
sent to Shaun A. Maher, Esq., Policy & Rules Branch, Commercial 
Wireless Division, Wireless Telecommunications Bureau, Seventh Floor--
Room 93, 2100 M Street, N.W., Washington, DC 20554. One copy should 
also be sent to the Commission's contractor for public service records 
duplication, International Transcription Service, Inc. (ITS), 1231 20th 
Street, N.W., Washington, DC 20036. Parties filing comments in this 
non-docketed proceeding should include the internal reference numbers, 
DA 96-2140 and FCC 97-264, on their pleadings.
    Parties are encouraged to submit comments and reply comments on 
diskette. Such diskette submissions would be in addition to and not a 
substitute for the formal filing requirements presented above. Parties 
submitting diskettes should submit them to Shaun A. Maher, at the 
above-outlined address. Such a submission should be on a 3.5 inch 
diskette formatted in an IBM compatible form using Word Perfect 5.1 for 
Windows software. The diskette should be submitted in ``read only'' 
mode, and should be clearly labelled with the party's name, proceeding, 
type of pleading (comment or reply comment) and date of submission.
    The full text of all comments and reply comments will be available 
for inspection and duplication during regular business hours in the 
Commercial Wireless Division Public Reference Room, 2025 M Street, 
N.W., Room 5608, Washington, D.C. 20554. Copies may also be obtained 
from International Transcription Service, Inc. (ITS), 1231 20th Street, 
N.W., Washington, D.C. 20036, (202) 857-3800.
    We will continue to treat this proceeding as permit-but-disclose 
for purposes of the Commission's ex parte rules. See generally 47 CFR 
Secs. 1.1200-1.1216.
    For further information, contact Shaun A. Maher of the Wireless 
Telecommunications Bureau, at 202-418-7240 (email: smaher@fcc.gov).

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-21372 Filed 8-12-97; 8:45 am]