[Federal Register Volume 62, Number 177 (Friday, September 12, 1997)]
[Proposed Rules]
[Pages 48034-48042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24166]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 97-192; FCC 97-303]


Procedures for Reviewing Requests for Relief From State and Local 
Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications 
Act of 1934

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This Notice of Proposed Rulemaking (NPRM) in WT Docket No. 97-
192, opens a new proceeding to establish procedures for filing and 
reviewing requests for relief from state or local regulations based 
directly or indirectly on the environmental effects of RF emissions.

DATES: Comments are due October 9, 1997. Reply comments are due October 
24, 1997.

ADDRESSES: Office of the Secretary, Federal Communications Commission, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Shaun A. Maher, Policy and Rules 
Branch, Commercial Wireless Division, Wireless Telecommunications 
Bureau, Federal Communications Commission, (202) 418-7240.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's NPRM, 
WT Docket 97-192, FCC 97-303, adopted August 25, 1997, and released 
August 25, 1997. The full text of this Commission decision is available 
for inspection and copying during normal business hours in the FCC 
Reference Center (Room 239), 1919 M Street, N.W., Washington, D.C., and 
also may be

[[Page 48035]]

purchased from the Commission's duplication contractor, International 
Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140, 
Washington, D.C. 20037.

Summary of the Notice of Proposed Rulemaking

I. Definitional Issues

    1. In this proceeding, we seek comment on proposed procedures for 
filing and reviewing requests filed pursuant to section 332(c)(7)(B) 
(iv)-(v) of the Communications Act for relief from state or local 
regulations on the placement, construction or modification of personal 
wireless service facilities based either directly or indirectly on the 
environmental effects of RF emissions. As the siting of personal 
wireless facilities expands and numerous new personal wireless service 
providers seek to construct their facilities, we anticipate being 
called upon more frequently to review petitions alleging that a state 
or local government has acted or failed to act in a manner that is 
inconsistent with section 332(c)(7)(B) (iv)-(v). Therefore, we believe 
it is appropriate to initiate a rulemaking proceeding to seek comment 
on the procedures we should adopt for reviewing section 332(c)(7)(B) 
(iv)-(v) petitions.
    2. On August 1, 1996, we issued our Report and Order in ET Docket 
No. 93-62, 61 FR 41006, August 7, 1996, wherein we revised our RF 
emissions guidelines in response to Congress' mandate in section 704(b) 
of the Telecommunications Act. In the Report and Order, we first 
considered the implementation of section 332(c)(7)(B)(iv) when we 
sought to determine the definition of the term ``personal wireless 
service facilities.'' Congress specifically defined this term in 
section 332(c)(7)(C)(i) of the Communications Act to mean: ``commercial 
mobile services, unlicensed wireless services, and common carrier 
wireless exchange access services.'' This section does not provide 
specific authority for the Commission to preempt state or local 
regulations relating to RF emissions of communications services other 
than those specifically defined in the statute. Therefore, we declined 
to consider the preemption of state and local regulations relating to 
RF emissions involving broadcast or other communications facilities.
    3. The Electromagnetic Energy Association filed a petition for 
reconsideration of our Report and Order requesting that a broader RF 
preemption policy be adopted for all services. The Second Memorandum 
Opinion and Order in ET Docket No. 93-62, declined to take that 
approach or to consider granting relief from state and local 
regulations relating to RF emissions for facilities other than those of 
``personal wireless services'' as set forth in section 332(c)(7)(B)(iv) 
of the Communications Act. Congress provided a clear definition of this 
term in section 332(c)(7)(C)(i) of the Communications Act, and we find 
that definition is appropriate when determining whether to consider a 
request for relief filed under section 332(c)(7)(B)(v) of the 
Communications Act.
    4. As a preliminary matter, before considering procedures to review 
requests for relief under section 332(c)(7)(B)(v) of the Communications 
Act, we seek comment concerning the definition of certain terms 
contained in this section. For example, Congress did not define the 
terms ``final action'' or ``failure to act'' as they appear in section 
332(c)(7)(B)(v) of the Communications Act. In the Conference Report, 
however, ``final action'' is defined as final administrative action at 
the state or local government level so that a party can commence action 
under section 332(c)(7)(B)(v) rather than waiting for the exhaustion of 
any independent remedy otherwise required. We understand this to mean 
that, for example, a wireless provider could seek relief from the 
Commission from an adverse action of a local zoning board or commission 
while its independent appeal of that denial is pending before a local 
zoning board of appeals. We propose to adopt this definition of ``final 
action'' for the purpose of determining whether a state or local 
regulation is ripe for review under section 332(c)(7)(B)(v) and we seek 
comment on this definition.
    5. In addition, while Congress provided no specific definition of 
the term ``failure to act,'' under section 332(c)(7)(B)(ii) of the 
Communications Act, decisions regarding personal wireless service 
facilities siting are to be rendered in a reasonable period of time, 
taking into account the nature and scope of each request. If a request 
for placement of a personal wireless service facility involves a zoning 
variance or a public hearing or comment process, the Conference Report 
states that the time period for rendering a decision will be the usual 
period under such circumstances. Congress also stated that it did not 
intend to confer preferential treatment upon the personal wireless 
service industry in the processing of requests, or to subject that 
industry's requests to anything but the generally applicable time 
frames for zoning decisions. Therefore, we propose to determine whether 
a state or local government has ``failed to act'' on a case-by-case 
basis taking into account various factors including how state and local 
governments typically process other facility siting requests and other 
RF-related actions by these governments. We seek comment on the average 
length of time it takes to issue various types of siting permits, such 
as building permits, special or conditional use permits, and zoning 
variances and whether additional time is needed when such permits are 
subject to a formal hearing.
    6. Furthermore, we seek comment on whether the Commission should 
grant relief from a final action or failure to act based only partially 
on the environmental effects of RF emissions. We believe that state and 
local regulations do not have to be based entirely on the environmental 
effects of RF emissions in order for decisions to be reviewed by the 
Commission. The Conference Report stated that, in order to be reviewed 
pursuant to section 337(c)(7)(B)(v) of the Communications Act, such 
regulations may be based either directly or indirectly on the 
environmental effects of RF emissions. However, the Conference Report 
did not define the term ``indirectly.'' We seek comment as to how we 
should define this term. We propose to examine such determinations on a 
case-by-case basis and to preempt, where applicable, only that portion 
of an action or failure to act that is based on RF emissions and to 
permit the adversely-affected party to seek relief from the remainder 
of the state or local regulation for which the Commission does not have 
authority to grant relief from the appropriate federal or state court. 
We may act in an advisory capacity in those areas where the Commission 
does not have specific preemption authority and provide the court with 
our expert opinion, as requested by the court or parties.
    7. We tentatively conclude that we have the authority to review 
state and local regulations that appear to be based upon RF concerns 
but for which no formal justification is provided. For example, in 
response to the CTIA Letter, the WTB considered a hypothetical case 
where a county denied a wireless provider's application for a 
conditional use permit. A significant portion of the record in the 
hypothetical local proceeding centered on the environmental effects of 
RF emissions. Although the local government entity did not refer to 
these concerns in its decision denying the permit, it did reference 
community opposition which was largely based upon these concerns.

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The WTB advised that, under the circumstances, the decision's citation 
to community opposition as a ground for denial suggested that the 
decision may, in fact, have been based on environmental concerns. To 
the extent that the evidence in such a hypothetical case established 
that the decision was based either directly or indirectly on such 
impermissible considerations and the evidence did not establish non-
compliance with the Commission's regulations, the WTB believed that the 
decision would apparently be inconsistent with section 
332(c)(7)(B)(iv). In addition, we note that, pursuant to section 
332(c)(7)(B)(iii) of the Communications Act, state and local decisions 
concerning the siting of personal wireless facilities are to be in 
writing and supported by substantial evidence contained in a written 
record. Therefore, we seek comment on our tentative conclusion to grant 
relief to licensees or personal wireless service facilities from state 
and local regulations of personal wireless facilities based upon 
concerns of the environmental effects of RF emissions even if there is 
no formal justification provided for the decision if there is evidence 
to support the conclusion that concerns over RF emissions constituted 
the basis for the regulation.
    8. Finally, we seek comment on whether our authority under section 
332(c)(7)(B)(v) to preempt state and local actions that are based on 
concerns over RF emissions extends to private entities' efforts to 
limit the placement, construction, and modification of personal 
wireless service facilities. We recognize that wireless providers, 
especially new services such as the ``wireless local loop,'' may 
encounter restrictions by non-governmental entities, such as homeowner 
associations and private land covenants, that could prove to be an 
impediment to their ability to deploy their services. We seek to 
determine whether such entities would fall under the definition of 
``state or local government or any instrumentality thereof'' as that 
term is used in section 332(c)(7)(B)(v) of the Communications Act and 
whether decisions by private entities should be subject to Commission 
review.

II. Demonstration of RF Compliance

    9. Section 332(c)(7)(B)(iv) of the Communications Act states that 
``[n]o state or local government or instrumentality thereof may 
regulate the placement, construction, and modification of personal 
wireless service facilities on the basis of the environmental effects 
of radio frequency emissions to the extent that such facilities comply 
with the Commission's regulations concerning such emissions.'' Neither 
the text of the Act nor the legislative history indicates to what 
extent localities are permitted to request that personal wireless 
service providers demonstrate compliance with our RF guidelines. LSGAC 
argues that Act preserves the authority of state and local governments 
to ensure that personal wireless service facilities comply with the 
Commission's RF emission regulations. We recognize that it is 
reasonable for state and local governments to inquire as to whether a 
specific personal wireless service facility will comply with our RF 
emissions guidelines. LSGAC contends that local officials must be able 
to assure their constituents that compliance with the Commission's RF 
regulations will be monitored. LSGAC recommends that the Commission 
adopt a mutually acceptable RF testing and documentation mechanism that 
providers and local authorities may use to demonstrate compliance with 
RF radiation limits. We tentatively agree with LSGAC's recommendation, 
however, we believe that there should be some limit as to the type of 
information that a state or local authority may seek from a personal 
wireless service provider. The type of information may vary depending 
upon how the personal wireless service facility is classified under our 
environmental rules. Under the procedural guidelines adopted in the 
Report and Order and modified in the Second Memorandum Opinion and 
Order in this proceeding, proposed wireless facilities may be 
considered either: (1) Environmental actions requiring the submission 
of an Environmental Assessment (EA); (2) actions that do not require 
such an assessment but nevertheless require routine RF emissions 
evaluation by the Commission; or (3) actions that are categorically 
excluded from routine RF emissions evaluation based upon their height 
above ground level or their low operating power. Facilities that are 
categorically excluded must comply with the substantive RF emissions 
guidelines; however, because they are extremely unlikely to cause 
routine exposure that exceeds the guidelines, applicants for such 
facilities are not required to perform any emissions evaluation as a 
condition of license, unless specifically ordered to do so by the 
Commission. Given these environmental classifications, we seek comment 
on two alternative showings that would be permissible for local and 
state governments to request personal wireless providers submit as part 
of the local approval process.
    10. Under the first alternative, we propose a more limited showing. 
For personal wireless service facilities that were categorically 
excluded from routine Commission evaluation, state and local 
authorities would only be allowed to request that the personal wireless 
provider certify in writing that its proposed facility will comply with 
the Commission's RF emissions guidelines. In the case of facilities 
that were not categorically excluded, state or local authorities would 
be limited to requesting copies of any and all documents related to RF 
emissions submitted to the Commission as part of the licensing process. 
We seek comment on this limited showing and how a state or local 
authority would be able to seek relief from a licensee that falsely 
certifies its facility complies or will comply with our RF emissions 
guidelines.
    11. Alternatively, we ask for comment on whether to adopt a more 
detailed showing. We believe, however, that this alternative can be 
workable only if we adopt uniform standards for such a demonstration 
that would be regarded as sufficient by all state and local governments 
for demonstrating compliance with the RF guidelines. We propose, once 
again, for facilities that were not categorically excluded, that state 
or local authorities would be limited to requesting copies of any and 
all documents related to RF emissions submitted to the Commission as 
part of the licensing process. For facilities that were categorically 
excluded, we propose that the state and local governments be permitted 
to request that the personal wireless service provider submit a 
demonstration of compliance. We ask for comments on the criteria for 
such a demonstration of compliance. We seek to develop a showing that 
would impose a minimal burden on service providers, while satisfying 
legitimate state and local government interests. In addition, we seek 
to determine which party should be required to pay for the preparation 
of the demonstration of compliance. LSGAC contends that local taxpayers 
should not bear the costs of investigations taken by state and local 
governments to determine compliance with the Commission's RF 
regulations.
    12. While this proceeding is pending, we believe that it would be 
beneficial to personal wireless service providers and state and local 
governments for us to provide some policy guidance as to what 
information we believe a carrier should be obligated to provide to 
demonstrate to localities that its ``facilities comply with the

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Commission's regulations concerning such (RF) emissions'' as stated in 
section 332(c)(7)(B)(iv) of the Communications Act. We therefore are 
providing a non-binding policy statement as to the circumstances in 
which we would be less likely to find such information requests to be 
inconsistent with section 332(c)(7)(B)(iv). We believe that such a 
statement will provide much needed guidance to state and local 
governments on the issue of RF compliance and would greatly expedite 
the siting of personal wireless service facilities pending our adoption 
of final rules herein. We are concerned that state and local 
governments may delay the siting of facilities based upon concerns 
about the effects of RF emissions and a carrier's compliance with our 
RF guidelines. As the record in the RF emissions proceeding indicated, 
several states have been adopting their own RF regulations in an effort 
to resolve these concerns. As a result of such actions, wireless 
facilities that otherwise comply with federal RF emissions guidelines 
are experiencing delays as state and local officials search for methods 
to assess such compliance. Conversely, personal wireless service 
providers cite to our RF rules and conclude that they should not be 
required to submit any information about RF compliance as part of the 
local approval process. Therefore, we believe that providing guidance 
as to the types of RF information a state or local government may 
request will provide both sides a much-needed measure of certainty 
because state and local governments would know certain types of RF 
information they could request in this interim period without concern 
that their actions would be subsequently preempted by the Commission. 
Similarly, personal wireless service providers would understand what we 
believe is reasonable for state and local governments to request.
    13. We believe that, pending adoption of final rules, we would not 
preempt state and local government requests that personal wireless 
service providers submit, as part of their application to place, 
construct, or modify a personal wireless service facility, the more 
detailed demonstration of RF compliance set forth in our second 
alternative above. However, at the present time, we believe that this 
level of information should be the most that a state or local 
government should be permitted to request and we would be likely to 
find that information requests that exceed this level are inconsistent 
with section 332(c)(7)(B)(iv) of the Communications Act. The type of 
demonstration that could be requested by the state or local government 
would depend on how the facility was classified under the Commission's 
environmental categories. For those facilities that are not 
categorically excluded from routine environmental processing, as set 
forth in Sec. 1.1306 of the rules, we would be less likely to preempt 
state or local authorities that simply request copies of all 
environmental documents, such as the Environmental Assessment or 
evaluation, that were submitted to the Commission as part of the 
licensing process. For those facilities that were categorically 
excluded, we would be less likely to preempt state and local 
authorities that simply request that the personal wireless service 
provider submit a uniform demonstration of compliance with the 
Commission's RF guidelines. We believe that a uniform demonstration of 
compliance should consist of a written statement signed by the personal 
wireless service provider or its representative and should conform to 
our rules on truthfulness of written statements, subscription and 
verification. We believe that the following information should also be 
contained in the uniform demonstration of RF compliance to be filed for 
facilities that were categorically excluded:

    (1) A statement that the proposed or existing transmitting 
facility does or will comply with FCC radio frequency emission 
guidelines for both general population/uncontrolled exposures and 
occupational/controlled exposures as defined in the rules.
    (2) A statement or explanation as to how the personal wireless 
service provider determined that the transmitting facility will 
comply, e.g., by calculational methods, by computer simulations, by 
actual field measurements, etc. Actual values for predicted exposure 
should be provided to further support the statement. An exhaustive 
record of all possible exposure locations is not necessary, but, for 
example, the ``worst case'' exposure value in an accessible area 
could be mentioned as showing that no exposures would ever be 
greater than that level. Reference should be given to the actual FCC 
exposure limit or limits relevant for the particular transmitting 
site.
    (3) An explanation as to what, if any, restrictions on access to 
certain areas will be maintained to ensure compliance with the 
public or occupational exposure limits. This includes control 
procedures that are established for workers who may be exposed as a 
result of maintenance or other tasks related to their jobs.
    (4) A statement as to whether other significant transmitting 
sources are located at or near the transmitting site, and, if 
required by the rules, whether their RF emissions were considered in 
determining compliance at the transmitting site.

    14. We stress that the above-outlined policies concerning the 
demonstration of RF compliance are non-binding and are merely provided 
as guidance pending the final outcome of this proceeding. Should a 
state or local government request that a personal wireless service 
provider submit RF information that is consistent with our above-
outlined policies, we would be less likely to find its action to be 
inconsistent with section 332(c)(7)(B)(iv) of the Communications Act. 
However, we stress that we will continue to evaluate each request for 
relief that is filed concerning state and local RF regulations and we 
will determine, on a case by-case basis, whether such regulations are 
consistent with section 332(c)(7)(B)(iv).
    15. In addition, we seek comment as to whether the more detailed 
showing that we proposed as one of the two alternatives above should 
include the above outlined criteria. We believe that the criteria set 
forth above should provide sufficient information to constitute the 
more detailed showing of RF compliance while imposing a minimum burden 
on personal wireless service providers. We seek to determine whether 
additional information, not currently included above, is necessary to 
demonstrate compliance or whether any of the above-outlined elements 
are too broad or unnecessary.

III. General Procedures for Reviewing Requests for Relief

    16. We seek comment on the following proposed procedures for 
reviewing requests for relief filed under section 332(c)(7)(B)(v) of 
the Communications Act. We propose that parties seeking relief file a 
request for declaratory ruling pursuant to Sec. 1.2 of the Commission's 
Rules, asking that the Commission review the state or local regulation 
and grant appropriate relief. Sections 1.45 through 1.49 of the 
Commission's Rules, concerning the filing of pleadings and responsive 
pleadings, shall be applicable with respect to such requests. We 
propose that a copy of the request be served on the state or local 
authority that took the action or failed to take the action against 
which relief is sought.
    17. We also seek comment on the following method for providing 
comment on such requests. We seek comment on whether we should limit 
participation in the proceeding to only those interested parties able 
to demonstrate standing to participate in the proceeding. Section 
332(c)(7)(B)(v) of the Communications Act states that requests for 
relief may be filed by any ``person adversely affected.'' We seek 
comment on the definition of ``person

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adversely affected.'' and how we should determine whether an entity has 
standing to participate in the preemption proceeding. We find that 
limiting the number of parties participating in the proceeding to only 
those that are ``adversely affected'' will reduce the possibility of 
frivolous filings, and expedite the processing of preemption requests. 
We seek comment on this proposed procedure.

IV. Rebuttable Presumption of Compliance

    18. We tentatively conclude that we should adopt a rebuttable 
presumption that would operate when reviewing requests for relief from 
state and local actions under section 332(c)(7)(B)(v). Under such a 
procedure, we would presume that personal wireless facilities will 
comply with our RF emissions guidelines. The state or local government 
would have the burden of overcoming this presumption by demonstrating 
that the facility in question does not or will not, in fact, comply 
with our RF guidelines. We believe that such a presumption would be 
consistent with Commission practice. Generally, we presume that 
licensees are in compliance with our rules unless presented with 
evidence to the contrary. In addition, applicants for personal wireless 
services must certify in their applications that they will comply with 
all of the Commission's rules, including the RF guidelines. With 
respect to providers of ``unlicensed wireless services,'' we 
tentatively conclude that it would be consistent with Commission 
practice to presume that they are in compliance with our RF guidelines 
because such providers must employ type-accepted equipment that 
complies with our RF guidelines. Therefore, we seek comment on whether 
we should presume that personal wireless facilities are in compliance 
with our RF guidelines, and whether we should grant relief from state 
or local actions that prevent the construction of such facilities when 
such actions are based on RF concerns. We remain sensitive, of course, 
to the concerns of state and local governments and we encourage state 
and local governments to submit comments explaining how such a 
presumption might effect them. We encourage state and local 
governments, including LSGAC, to file comments on the NPRM. We 
specifically request comment in the interest of minimizing any 
potential adverse affect the establishment of a rebuttable presumption 
may have on state and local authorities' ability to ensure the health 
and safety of their citizens.
    19. We have utilized a rebuttable presumption in other contexts 
similar to this one. In our proceeding concerning preemption of local 
zoning regulation of satellite earth stations, we adopted a rebuttal 
presumption that state and local regulation of small antennas is 
presumed unreasonable. If the state or local government objects to a 
request to preempt its action, then it is permitted to rebut the 
presumption by demonstrating the necessity of the regulation for health 
and safety reasons. In the rulemaking we conducted concerning access to 
telecommunications equipment and services by persons with disabilities, 
we adopted a rebuttable presumption that, by a date certain, all 
workplace non-common area telephones would be hearing aid compatible. 
We found that the rebuttable presumption approach would relieve 
employers of the need to field-test and identify whether their 
telephones are hearing aid compatible. This presumption can be 
rebutted, on a telephone-by-telephone basis, by any person legitimately 
on the premises who identifies a particular telephone as non-hearing 
aid compatible. Finally, in our proceeding concerning the improvement 
of the quality of the AM broadcast service, we adopted a rebuttable 
presumption of compliance with our newly-adopted emission limits and we 
did not require that AM station licensees conduct periodic emission 
measurements. However, this presumption could be rebutted by technical 
evidence (e.g., spectrum analyzer measurement results) of non-
compliance. In each of these cases, we adopted a presumption and then 
permitted the presumption to be rebutted when presented with contrary 
evidence. We seek comment as to whether we should adopt a similar 
rebuttable presumption for consideration of preemption requests filed 
pursuant to section 332(c)(7)(B)(v) of the Communications Act.

V. Operation of Presumption

    20. We recognize that some wireless services are licensed on a 
geographic area basis only and that our wireless rules do not provide 
for the licensing of individual tower or antenna facilities. There may 
be a concern that individual facilities do not, in fact, comply with 
our RF guidelines. Moreover, certain personal wireless services may be 
provided via low-power, unlicensed devices. Therefore, we believe that 
it is appropriate to permit interested parties to rebut the presumption 
of compliance. We seek comment on the procedures we should adopt to 
permit the presentation of such a rebuttal showing. We propose limiting 
the consideration of such presentations to only those parties that are 
able to demonstrate that they are ``interested parties'' or that 
otherwise demonstrate that they have standing to participate in the 
proceeding. We propose that, in order to rebut the presumption, 
interested parties would bear the initial burden of proof and would be 
required to demonstrate that a particular facility does not in fact 
comply with our RF limits. Such a demonstration of noncompliance could 
include, but would not be limited to: (1) The interested party 
demonstrating that the personal wireless service provider is or would 
be operating without a valid Commission authorization; (2) the 
interested party submitting an Environmental Assessment with detailed 
RF measurements or calculations that demonstrates that the Commission's 
RF exposure guidelines for controlled or uncontrolled environments is 
or would be exceeded in the disputed area, or (3) the interested party 
demonstrating that the licensee's operation otherwise may not comply 
with the Commission's RF exposure guidelines. The Commission shall 
examine this showing and determine whether the interested party has 
made a prima facie case for noncompliance. If the interested party 
fails to make a prima facie case for noncompliance, then we would 
preempt the state or local regulation. If a prima facie case for 
noncompliance is made, then the burden of proof would shift to the 
personal wireless provider to demonstrate that its facility would 
comply with the RF limits. Should we find that the facility in question 
does not comply with our RF limits or should the personal wireless 
service provider fail to respond, we would not grant relief from the 
state or local regulation and we would initiate an enforcement 
proceeding to ensure compliance with our RF guidelines. If, after 
examination of the personal wireless service provider's response, we 
find that the facility does comply with our RF limits, then we would 
preempt the state or local regulation. Should the personal wireless 
provider modify its facility to comply with the RF emissions 
guidelines, we propose allowing the provider to file subsequent 
requests for relief. In addition, we tentatively propose that both the 
wireless provider and the interested parties be permitted to seek 
review of final Commission and delegated authority actions taken 
pursuant to section 332(c)(7)(B)(v) of the Communications Act via the 
review procedures set forth in our rules and the

[[Page 48039]]

Communications Act. We seek comment on these procedures.
    21. We believe that allowing interested parties to rebut the 
presumption of compliance will provide a balanced method for resolving 
section 332(c)(7)(B)(v) proceedings. We seek comment as to whether such 
a procedure is appropriate and whether there are other methods an 
interested party might employ to demonstrate its contention that a 
personal wireless facility does not or will not comply with the RF 
emissions guidelines.
    22. We believe that the procedures we propose herein provide a fair 
and balanced approach to reviewing requests for relief from state and 
local regulations based on the effects of RF emissions filed pursuant 
to section 332(c)(7)(B)(v) of the Communications Act. These procedures, 
if adopted, would provide interested parties with the opportunity to 
present their views to the Commission and for the Commission to 
carefully review requests for relief in an expedited fashion. We view 
this proceeding as another important step in our ongoing efforts to 
assist in the resolution of state and local disputes concerning the 
siting of personal wireless service facilities and to provide expert 
guidance and input on these important matters.

VI. Procedural Matters

i. Regulatory Flexibility Act

    23. An Initial Regulatory Flexibility Analysis for the NPRM in WT 
Docket No. 97-192 appears below. As required by section 603 of the 
Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has prepared 
the Initial Regulatory Flexibility Analysis of the expected impact on 
small entities of the proposals suggested in this document. Written 
public comments are requested on the Initial Regulatory Flexibility 
Analysis. In order to fulfill the mandate of the Contract with America 
Advancement Act of 1996 regarding the Final Regulatory Flexibility 
Analysis we ask a number of questions in our Initial Regulatory 
Flexibility Analysis regarding the prevalence of small businesses that 
may be impacted by the proposed procedures. Comments on the Initial 
Regulatory Flexibility Analysis must be filed in accordance with the 
same filing deadlines as comments on the NPRM, but they must have a 
separate and distinct heading designating them as responses to the 
Initial Regulatory Flexibility Analysis. The Secretary shall send a 
copy of this NPRM, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with section 603(a) of the Regulatory 
Flexibility Act, 5 U.S.C. 603(a).
    24. As required by section 603 of the Regulatory Flexibility Act, 5 
U.S.C. 603, the Commission has prepared an Initial Regulatory 
Flexibility Analysis (IRFA) of the expected impact on small entities of 
the policies and rules proposed in this NPRM. Written public comments 
are requested on the IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments on the NPRM as 
provided in the NPRM.
    25. Reason for Action: This rulemaking proceeding was initiated to 
secure comment on procedures for reviewing requests for relief of State 
and local regulations concerning the siting of personal wireless 
service facilities that are based on the environmental effects of RF 
emissions pursuant to section 332(c)(7)(B)(v) of the Communications 
Act. This section of the Communications Act was created with the 
passage of section 704 the Telecommunications Act of 1996.
    26. Objectives: The procedures set forth in the NPRM are designed 
to provide a balanced method for reviewing requests for relief and to 
ensure that personal wireless service providers are permitted to seek 
the full relief afforded them under the Communications Act. At the same 
time, the Commission seeks to provide an opportunity for interested 
parties to argue that a specific wireless facility will not comply with 
the Commission's RF guidelines. In addition, the Commission believes 
that the procedures adopted as a result of this proceeding will allow 
for expedited review of requests for relief, as well as, much-needed 
guidance on this important issue.
    27. Legal Basis: The proposed action is authorized under sections 
4(i), 303(g), 303(r) and 332(c)(7) of the Communications Act of 1934, 
as amended.
    28. Reporting, Recordkeeping, and Other Compliance Requirements: 
The proposals under consideration in the NPRM include the possibility 
of imposing a new filing requirement for parties seeking relief 
pursuant to section 332(c)(7)(B)(v) of the Communications Act. The 
filing requirement would be used to determine whether to grant relief 
from the State or local regulation in question. This filing will be in 
the form of a request for declaratory ruling filed pursuant to Sec. 1.2 
of the Commission's Rules. Only interested parties or those parties 
demonstrating the requisite standing will be permitted to participate 
in the proceeding. The NPRM also seeks comment on whether to adopt 
either a simple certification of compliance or more detailed 
demonstration of compliance that personal wireless service providers 
will be required to submit to State and local governments as evidence 
of RF emissions compliance.
    29. We estimate that the average burden on the party seeking relief 
will be approximately two hours to prepare the request for relief and 
file it with the Commission. We estimate an equal amount of time for 
the State or local authority or other interested party (referred to 
jointly herein as the ``respondents'') to prepare and file their 
comments on and/or oppositions to the preemption request. We estimate 
that 75 percent of both the requesting parties and the respondents 
(which may include small businesses) will contract out the burden of 
preparing their filings. We estimate that it will take approximately 1 
hour to coordinate information with those contractors. The remaining 25 
percent of parties filing requests and respondents (which may include 
small businesses) are estimated to employ in-house staff to provide the 
information. We estimate that parties requesting relief and respondents 
that contract out the task of preparing their filings will use an 
attorney or engineer (average $200 per hour) to prepare the 
information.
    30. We estimate that the average burden on the party required to 
prepare a simple certification of RF compliance to be less than one 
hour. We estimate that the average burden on the party required to 
prepare a more detailed demonstration of RF compliance to be 
approximately 5 hours. We estimate that 75 percent of these parties 
(which may include small businesses) will contract out the burden of 
preparing their filings. We estimate that it will take approximately 1 
hour to coordinate information with those contractors. The remaining 25 
percent of parties (which may include small businesses) are estimated 
to employ in-house staff to provide the information. We estimate that 
parties that contract out the task of preparing their filings will use 
an engineer (average $200 per hour) to prepare the information.
    31. Federal Rules Which Overlap, Duplicate or Conflict With These 
Rules: section 332(c)(7)(B)(iv)-(v) provides the authority for the 
Commission to consider requests for relief of state and local actions.
    32. Description, Potential Impact, and Number of Small Entities 
Involved: The proposed rules in this NPRM will apply to all small 
businesses which avail themselves of these new procedures,

[[Page 48040]]

including small businesses defined as providers of ``personal wireless 
services'' that seek relief from State and local regulations based upon 
the environmental effects of RF emissions. The Commission is required 
to estimate in its Final Regulatory Flexibility Analysis the number of 
small entities to which these new procedures will apply, provide a 
description of these entities, and assess the impact of the rule on 
such entities. To assist the Commission in this analysis, commenters 
are requested to provide information regarding how many total providers 
of ``personal wireless services,'' existing and potential, will be 
considered small businesses. ``Small business'' is defined as having 
the same meaning as the term ``small business concern'' under the Small 
Business Act. Based on that statutory provision, we will consider a 
small business concern one which (1) is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA). We seek comment as to whether this definition is 
appropriate in this context. Additionally, we request each commenter to 
identify whether it is a small business under this definition. If the 
commenter is a subsidiary of another entity, this information should be 
provided for both the subsidiary and the parent corporation or entity.
    33. The Commission has not yet developed a definition of small 
entities which respect to reviewing requests for relief pursuant to 
section 332(c)(7)(B)(v) of the Communications Act. Therefore, the 
applicable definition of small entity is the definition under the SBA 
applicable to the ``Communications Services, Not Elsewhere'' category. 
The Census Bureau estimates indicate that of the 848 firms in the 
``Communications Services, Not Elsewhere'' category, 775 are small 
businesses. While the Commission anticipates receiving requests for 
relief filed pursuant to section 332(c)(7)(B)(v) of the Communications 
Act, it is not possible to predict how many will be filed or what 
percentage of these will be filed by small entities.

Cellular Radio Telephone Service

    34. The Commission has not developed a definition of small entities 
applicable to cellular licensees. Therefore, the applicable definition 
of small entity is the definition under the Small Business 
Administration (SBA) rules applicable to radiotelephone companies. This 
definition provides that a small entity is a radiotelephone company 
employing fewer than 1,500 persons. The size data provided by the SBA 
does not enable us to make a meaningful estimate of the number of 
cellular providers which are small entities because it combines all 
radiotelephone companies with 500 or more employees. We therefore used 
the 1992 Census of Transportation, Communications, and Utilities, 
conducted by the Bureau of the Census, which is the most recent 
information available. That census shows that only 12 radiotelephone 
firms out of a total of 1,178 such firms which operated during 1992 had 
1,000 or more employees. Therefore, even if all 12 of these large firms 
were cellular telephone companies, all of the remainder were small 
businesses under the SBA's definition. We assume that, for purposes of 
our evaluations and conclusions in this IRFA, all of the current 
cellular licensees are small entities, as that term is defined by the 
SBA. Although there are 1,758 cellular licenses, we do not know the 
number of cellular licensees, since a cellular licensee may own several 
licenses.
    35. The rules we are proposing would permit a cellular licensee to 
seek relief from the Commission for an adverse State or local 
regulation that is based upon environmental effects of RF emissions. 
Since most cellular licensees have constructed their facilities, we 
anticipate receiving only a small number of such requests from cellular 
licensees and that all of these would be small entities.
Personal Communications Service
    36. The broadband PCS spectrum is divided into six frequency blocks 
designated A through F. Pursuant to 47 CFR 24.720(b), the Commission 
has defined ``small entity'' for Blocks C and F licensees as firms that 
had average gross revenues of less than $40 million in the three 
previous calendar years. This regulation defining ``small entity'' in 
the context of broadband PCS auctions has been approved by the SBA.
    37. The Commission has auctioned broadband PCS licenses in all of 
its spectrum blocks A through F. We do not have sufficient data to 
determine how many small businesses under the Commission's definition 
bid successfully for licenses in Blocks A and B. As of now, there are 
90 non-defaulting winning bidders that qualify as small entities in the 
Block C auction and 93 non-defaulting winning bidders that qualify as 
small entities in the D, E, and F Block auctions. Based on this 
information, we conclude that the number of broadband PCS licensees 
that would be affected by the proposals in this NPRM includes the 183 
non-defaulting winning bidders that qualify as small entities in the C, 
D, E and F Block broadband PCS auctions.
    38. The Commission expects to receive a significant number of 
requests for relief filed pursuant to section 332(c)(7)(B)(v) involving 
broadband PCS licensee, many of whom may be small entities. However, it 
is not possible to estimate the exact number that will be filed.
Paging and Radiotelephone Service, and Paging Operations
    39. Since the Commission has not yet approved a definition for 
paging services, we will utilize the SBA's definition applicable to 
radiotelephone companies, i.e., an entity employing less than 1,500 
persons.
    40. The Commission anticipates that a total of 15,531 non-
nationwide geographic area licenses will be granted or auctioned. The 
geographic area licenses will consist of 3,050 MTA licenses and 12,481 
EA licenses. In addition to the 47 Rand McNally MTAs, the Commission is 
licensing Alaska as a separate MTA and adding three MTAs for the U.S. 
territories, for a total of 51 MTAs. No auctions of paging licenses has 
been held yet, and there is no basis to determine the number of 
licenses that will be awarded to small entities. Given the fact that 
nearly all radiotelephone companies have fewer than 1,000 employees, 
and that no reliable estimate of the number of prospective paging 
licensees can be made, we assume, for purposes of this IRFA, that all 
the 15,531 geographic area paging licenses will be awarded to small 
entities, as that term is defined by the SBA.
    41. We estimate that a significant number of paging licensees may 
file requests for relief pursuant to section 332(c)(7)(B)(v) and that 
all of these will be small entities.
Specialized Mobile Radio
    42. Pursuant to 47 CFR 90.814(b)(1), the Commission has defined 
``small entity'' for geographic area 800 MHz and 900 MHz SMR licenses 
as firms that had average gross revenues of less than $15 million in 
the three previous calendar years. This regulation defining ``small 
entity'' in the context of 800 MHz and 900 MHz SMR has been approved by 
the SBA.
    43. The proposals set forth in the NPRM apply to SMR providers in 
the 800 MHz and 900 MHz bands. We do not know how many firms provide 
800 MHz or 900 MHz geographic area SMR service, nor how many of these 
providers have annual revenues of less than $15 million. Furthermore, 
we are not able to estimate how many SMR

[[Page 48041]]

providers will seek preemption pursuant to section 332(c)(7)(B)(v) of 
the Communications Act.
    44. The Commission recently held auctions for geographic area 
licenses in the 900 MHz SMR band. There were 60 winning bidders who 
qualified as small entities under the Commission's definition in the 
900 MHz auction. Based on this information, we conclude that the number 
of geographic area SMR licensees affected by the proposals set forth in 
this NPRM includes these 60 small entities.
    45. No auctions have been held for 800 MHz geographic area SMR 
licenses. Therefore, no small entities currently hold these licenses. A 
total of 525 licenses will be awarded for the upper 200 channels in the 
800 MHz geographic area SMR auction. However, the Commission has not 
yet determined how many licenses will be awarded for the lower 230 
channels in the 800 MHz geographic area SMR auction. There is no basis 
to estimate, moreover, how many small entities within the SBA's 
definition will win these licenses. Given the facts that nearly all 
radiotelephone companies have fewer than 1,000 employees and that no 
reliable estimate of the number of prospective 800 MHz licensees can be 
made, we assume, for purposes of our evaluations and conclusions in 
this IRFA, that all of the licenses will be awarded to small entities, 
as that term is defined by the SBA.
Unlicensed Personal Communications Services and Wireless Exchange 
Access Carriers
    46. Section 332(c)(7)(C)(i) of the Communications Act includes 
``unlicensed wireless services'' and ``common carrier wireless exchange 
access services'' in the definition of ``personal wireless services'' 
for which relief may be sought under section 332(c)(7)(B)(v). We 
presently have no data on the number of providers of unlicensed 
wireless services or common carrier wireless exchange access services.
    47. Significant Alternatives Minimizing the Impact on Small 
Entities Consistent with the Stated Objectives: The proposals advanced 
in the NPRM are designed to permit personal wireless service providers 
with the opportunity to seek relief pursuant to section 332(c)(7)(B)(v) 
of the Communications Act. The impact on small entities in the 
proposals in the NPRM is the opportunity to seek such relief. These 
procedures were designed to have a minimal impact on all personal 
wireless providers, including small entities, and to provide for a 
balanced and expedited method for reviewing such requests. The 
Commission believes that such procedures shall help to attain the 
Congressional objective of ensuring that small businesses have an 
opportunity to participate in the provision of wireless services by 
enabling small businesses to overcome entry barriers in the provision 
of such services.
    48. This NPRM solicits comments on a variety of proposals discussed 
herein. Any significant alternatives presented in the comments will be 
considered.

ii. Ex Parte Rules--Non-Restricted Proceedings

    49. This is a non-restricted notice and comment rule making 
proceeding. Ex parte presentations are permitted except during the 
Sunshine Agenda period, provided they are disclosed as provided in the 
Commission's rules. See generally 47 CFR Secs. 1.1201, 1203, and 
1.1206(a).

iii. Comment Dates

    Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's rules, 47 CFR Secs. 1.415 and 1.419, 
interested parties may file comments to the NPRM on or before October 
9, 1997, and reply comments on or before October 24, 1997. To file 
formally in this proceeding, you must file an original and four copies 
of all comments, reply comments, and supporting comments. If you want 
each Commissioner to receive a personal copy of your comments, you must 
file an original plus nine copies. You should send comments and reply 
comments to Office of the Secretary, Federal Communications Commission, 
Washington, D.C. 20554. Comments and reply comments will be available 
for public inspection during regular business hours in the FCC 
Reference Center of the Federal Communications Commission, Room 239, 
1919 M Street, N.W., Washington, D.C. 20554.
    51. Parties are encouraged to submit comments and reply comments on 
diskette for possible inclusion on the Commission's Internet site so 
that copies of these documents may be obtained electronically. 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, Esq., Policy & Rules 
Branch, Commercial Wireless Division, Wireless Telecommunications 
Bureau, 2100 M Street, N.W., 7th Floor--Room 93, Washington, D.C. 
20554. 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.

iv. Initial Paperwork Reduction Act of 1995 Analysis

    52. The NPRM contains either a proposed or modified information 
collection. As part of its continuing effort to reduce paperwork 
burdens, we invite the general public and the Office of Management and 
Budget to take this opportunity to comment on the information 
collections contained in this NPRM, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due at the same time as other comments on this NPRM; OMB comments 
are due on or before 60 days after the publication in the Federal 
Register. Comments should address: (a) Whether the proposed collection 
of information is necessary for the proper performance of the functions 
of the Commission, including whether the information shall have 
practical utility; (b) the accuracy of the Commission's burden 
estimates; (c) ways to enhance the quality, utility, and clarity of the 
information collected; and (d) ways to minimize the burden of the 
collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    53. Written comments by the public on the proposed and/or modified 
information collections are due October 14, 1997. Written comments must 
be submitted by the Office of Management and Budget (OMB) on the 
proposed and/or modified information collections on or before 60 days 
after the publication in the Federal Register. In addition to filing 
comments with the Secretary, a copy of any comments on the information 
collections contained herein should be submitted to both of the 
following: Judy Boley, Federal Communications Commission, Room 234, 
1919 M Street, N.W., Washington, DC 20554, or via the Internet to 
[email protected] and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--
17th Street, N.W., Washington, DC 20503 or via the Internet at 
[email protected]. For additional information regarding the 
information collections contained herein, contact Judy Boley above.

v. Ordering Clauses

    54. It is ordered That, pursuant to the authority of sections 4(i), 
303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as 
amended, 47 U.S.C.

[[Page 48042]]

sections 154(i), 303(g), 303(r), and 332(c)(7), a notice of proposed 
rulemaking is hereby adopted.
    55. It is further ordered That the petition for rulemaking of the 
Cellular Telecommunications Industry Association, filed December 22, 
1994 (RM-8577), is hereby Dismissed.

vi. Further Information

    56. For further information concerning the NPRM, contact Shaun A. 
Maher, Esq. at (202) 418-7240, internet: [email protected], Policy & Rules 
Branch, Commercial Wireless Division, Wireless Telecommunications 
Bureau, Federal Communications Commission, Washington, D.C. 20554.

List of Subjects in 47 CFR Part 1

    Radio, Reporting and recordkeeping requirements.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-24166 Filed 9-11-97; 8:45 am]
BILLING CODE 6712-01-U