[Federal Register Volume 62, Number 156 (Wednesday, August 13, 1997)]
[Notices]
[Pages 43329-43330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21372]
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FEDERAL COMMUNICATIONS COMMISSION
[FCC 97-264]
Supplemental Pleading Cycle Established for Comments on Petition
for Declaratory Ruling of the Cellular Telecommunications Industry
Association
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: [email protected]).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-21372 Filed 8-12-97; 8:45 am]
BILLING CODE 6712-01-P