[Federal Register Volume 63, Number 232 (Thursday, December 3, 1998)]
[Notices]
[Pages 66806-66809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32158]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

[FCC 98-295]


Preemption of State or Local Statutes; Suggested Guidelines for 
Petitions for Ruling Under Section 253 of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Commission has released a Public Notice which suggests 
various procedural guidelines for filing petitions for Commission 
action pursuant to section 253 of the Communications Act. Section 253 
requires the Commission, subject to enumerated exceptions, to preempt 
the enforcement of any state or local statute, regulation, or legal 
requirement that prohibits or has the effect of prohibiting the ability 
of any entity to provide any interstate or intrastate 
telecommunications service. These suggested guidelines are designed to 
assist petitioners and commenters in preparing their submissions to the 
agency.

FOR FURTHER INFORMATION CONTACT: Jordan Goldstein, Common Carrier 
Bureau, (202) 418-1500.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    OMB Control Number: 3060-0859.
    Expiration Date: 5/31/99.
    Title: Suggested Guidelines for Petitions for Ruling under Section 
253 of the Communications Act.
    Respondents: Business or other for-profit; federal government; and 
state, local or tribal government.
    Public reporting burden for the collection of information is 
estimated as follows:

----------------------------------------------------------------------------------------------------------------
                                                                      No. of        Annual hour
                     Information collection                         respondents     burden per     Total annual
                                                                     (approx.)       response         burden
----------------------------------------------------------------------------------------------------------------
Filing of petitions for preemption..............................              20             125           2,500
Submission of written comments on petitions.....................              60              63           3,780
----------------------------------------------------------------------------------------------------------------

    Total Annual Burden: 6,280.
    Frequency of Response: On occasion.
    Estimated Costs per Respondent: $0.
    Needs and Uses: The Commission released a Public Notice (FCC 98-
295) which suggests various procedural guidelines relating to the 
Commission's processing of petitions for preemption pursuant to section 
253 of the Communications Act of 1934, as amended. The Commission will 
use the information to discharge its statutory mandate relating to the 
preemption of state or local statutes or other state or local legal 
requirements.

[[Page 66807]]

Synopsis of Public Notice

    This Public Notice suggests procedural guidelines for filing 
petitions for Commission action pursuant to section 253 of the 
Communications Act of 1934, as amended 47 U.S.C. 253 (Act). These 
suggested guidelines are designed to assist petitioners and commenters 
in preparing their submissions to the agency. Other than the mechanical 
filing requirements described below in Section D, however, these 
guidelines are not intended to limit the content or form of information 
that petitioners or commenters submit.

A. Background

    Section 253 requires the Commission, subject to enumerated 
exceptions, to preempt the enforcement of any state or local statute, 
regulation, or legal requirement that prohibits or has the effect of 
prohibiting the ability of any entity to provide any interstate or 
intrastate telecommunications service. To date, the Commission has 
received over 25 petitions seeking preemption under section 253.
    These petitions involve not only competition issues but also the 
relationships among the federal, state and local levels of government. 
In order to ensure that, on the one hand, competition is not unduly 
delayed by requirements that retard vigorous market entry, while, on 
the other hand, the vital role of state and local authorities in 
advancing the interests of their citizens is acknowledged, the 
Commission must undertake full and expeditious examination of the 
issues raised in each petition.
    Section 253 petitions necessarily involve state or local statutes, 
regulations, ordinances, or other legal requirements that likely are 
unfamiliar to the Commission. In order to render a timely and informed 
decision, petitioners and commenters should submit relevant information 
sufficient to describe the legal regime involved in the controversy and 
to establish the factual basis necessary for decision. Factual 
assertions should be supported by credible evidence, including 
affidavits, and, where appropriate, studies or other descriptions of 
the economic effects of the legal requirement that is the subject of 
the petition.
    In preparing their submissions, parties should address as 
appropriate all parts of section 253. In particular, parties should 
first describe whether the challenged requirement falls within the 
proscription of section 253(a); if it does, parties should describe 
whether the requirement nevertheless is permissible under other 
sections of the statute, specifically sections 253(b) and (c). Lastly, 
parties should submit information on whether and how the Commission 
could tailor a decision to preempt the enforcement of an offending 
legal requirement only ``to the extent necessary to correct such 
violation or inconsistency'' as required by section 253(d).

B. Content of Petitions and Replies

    The Commission realizes that it cannot anticipate every type of 
section 253 preemption request that may be filed. However, we identify 
below specific issues that we suggest petitioners should include when 
addressing whether a legal requirement violates the statute. While not 
all questions will be relevant to all petitions, the Commission 
suggests that section 253 petitions incorporate answers to the 
following questions, as applicable, in order to establish a complete 
factual record relating to section 253(a):
    (1) What is the statute, regulation, ordinance, or legal 
requirement that is being challenged? Please provide a copy. Identify 
and describe any other pending court or state regulatory actions 
relating to the enforceability of the challenged statute, regulation, 
or legal requirement.
    (2) What specific telecommunications service or services is the 
petitioner prohibited or effectively prohibited from providing?
    (a) What other specific entities, if any, are prohibited or 
effectively prohibited from providing the service?
    (b) What group or groups of actual or potential customers are being 
denied access to the service or services?
    (3) What are the factual circumstances that cause the petitioner to 
be denied the ability to offer the relevant telecommunications service 
or services?
    (a) Does the statute, regulation, ordinance, or legal requirement 
categorically ban provision of a telecommunications service?
    (b) Does the statute, regulation, ordinance, or legal requirement 
have the effect of prohibiting the ability of an entity to provide a 
telecommunications service? Petitioner should describe with 
particularity how the challenged statute, regulation, ordinance, or 
legal requirement has such an effect. For example, if the petitioner 
alleges that a statute, regulation, ordinance, or legal requirement has 
the effect of prohibiting the petitioner's ability to provide a 
telecommunications service because the challenged statute, regulation, 
ordinance, or legal requirement raises petitioner's costs, the petition 
should explain: (1) how the statute, regulation, ordinance, or other 
legal requirement prohibits or has the effect of prohibiting the 
ability of any entity to provide any interstate or intrastate 
telecommunications service, (2) whether the statute does so in a 
discriminatory manner; (3) whether price levels in the market preclude 
recovery of any such additional costs; and (4) any other factors that 
demonstrate that the challenged statute, regulation, ordinance, or 
legal requirement has the alleged effect.
    (4) Have other governmental entities adopted similar requirements? 
If so, are there conflicting requirements imposed on service providers 
(either in law or practice)? Are there cumulative adverse effects of 
requirements flowing from multiple local regulatory regimes? If so, the 
petitioner should describe with particularity how the cumulative 
adverse effects prohibit the ability of an entity to provide a 
telecommunications service.
    (5) Assuming the Commission determines that modification of the 
challenged statute, regulation, ordinance, or legal requirement is 
required, what is the least intrusive action necessary to correct the 
alleged violation of section 253?
    Responding parties, in addition to addressing issues raised in the 
petition, may also rely on section 253 (b) or (c), which identify 
certain State and local government actions as permissible even though 
they may be the basis for the alleged violation of section 253(a). In 
order to help the Commission determine whether preemption of the 
challenged statute, regulation, ordinance, or legal requirement is 
within the scope of Commission jurisdiction, parties commenting on the 
applicability of sections 253 (b) or (c), and especially parties 
seeking to invoke these sections, should include answers to the 
following questions in their filings:
    (1) If the requirement is imposed by a local government entity, 
what is the source of its authority (e.g., state constitution, statute, 
delegation of state power)?
    (2) Is the challenged statute, regulation, ordinance, or legal 
requirement:
    (a) necessary to preserve and advance universal service consistent 
with section 254 of the Act and does it do so in a competitively 
neutral and nondiscriminatory manner;
    (b) necessary to protect the public safety and welfare and does it 
do so in a competitively neutral and nondiscriminatory manner;
    (c) necessary to ensure the continued quality of telecommunications 
services and does it do so in a competitively

[[Page 66808]]

neutral and nondiscriminatory manner; and
    (d) necessary to safeguard the rights of consumers and does it do 
so in a competitively neutral and nondiscriminatory manner? Please 
explain.
    (3) Does the challenged statute, regulation, ordinance, or legal 
requirement pertain to the management of, or compensation for access 
to, rights-of-way? If so, please explain the nature of any relationship 
to rights-of-way management or compensation. If compensation is 
involved, is it fair and reasonable and required on a competitively 
neutral and nondiscriminatory basis?
    Parties asserting that a statute, regulation, ordinance, or legal 
requirement is necessary to achieve the objective at issue should 
describe and support this claim with particularity, including, but not 
limited to, a description of the objective sought to be achieved and of 
the inadequacies of less competitively restrictive means of achieving 
the objective.
    Parties asserting that a statute, regulation, ordinance, or legal 
requirement is not necessary to achieve the objective at issue should 
describe and support this claim with particularity, including, but not 
limited to, a description of less competitively restrictive means of 
achieving the objective.
    Parties asserting that a statute, regulation, ordinance, or legal 
requirement is discriminatory or not competitively neutral should 
describe and support such claim with particularity.
    Because section 253(d) requires notice and an opportunity for 
public comment before Commission action under section 253, commenters 
wishing to challenge additional provisions, even though related to 
those identified in the petition, should initiate their own petitions 
to address those provisions they believe appropriate.

C. Time Frame for Proceedings

    Once a petition has been filed (often styled as a request for 
declaratory ruling), the relevant Bureau will issue a public notice 
establishing the specific due dates for the various filings set forth 
below. We anticipate the affected government entity and interested 
third parties generally will have approximately 30 days to respond to 
the petition. If the matter presented in the petition is of an urgent 
nature, the Bureau may, where it determines good cause exists, require 
less than 30 days for responses. To file comments (or any other filing 
set forth below) in a section 253 proceeding, commenters should follow 
the applicable procedures outlined below.
    All participants in the proceeding--the petitioner, interested 
third parties, the relevant State or local government entity--may file 
a reply to any comment made by any other participant. Such replies 
generally will be due approximately 15 days after comments are due. The 
specific due date for replies will be set forth in the Initial Public 
Notice; the time period for replies may be less than 15 days if the 
relevant Bureau has determined that expedited review is appropriate. 
Reply comments may not raise new arguments that are not directly 
responsive to arguments other participants have raised, nor may the 
replies be repetitive of arguments made by that party in the petition 
or initial comments.

D. Filing Requirements For Petitions, Responses and Comments

    Petitioners should file an original and not less than six copies of 
each section 253 request. The name of the petitioner, the date the 
petition is filed, and the State and city (if applicable) to which it 
relates should appear in the upper right hand corner of each page of 
the petition. We encourage petitioners to also submit requests on a 3.5 
inch computer diskette formatted in WordPerfect 5.1. All filings 
submitted on diskette will be posted on the internet for public 
inspection at http://www.fcc.gov.
    If the petitioner wants each Commissioner to receive a copy of the 
section 253 request, the petitioner should file an original plus eleven 
copies. The original, all copies, and any diskette should be sent to 
the Office of the Secretary, Federal Communications Commission, 
Washington, DC 20554. The petitions will be available for public 
inspection during regular business hours in the reference room of the 
bureau to which the petition has been assigned, Washington, DC 20554. 
The applicant should also submit a copy of the request simultaneously 
to the Commission's copy contractor, International Transcription 
Services, Inc., 1231 20th Street, NW, Washington, DC 20036. In 
addition, the petitioner should simultaneously provide a copy of the 
petition to each state or local government entity to which the petition 
applies and reference such service in the petition. If the petition 
involves a local statute, regulation, ordinance, or legal requirement, 
the petitioner should also serve the appropriate state entity and 
reflect this service in the petition. Thereafter, each party, including 
the petitioner and each respondent state or local government entity, 
should serve all other parties with a copy of its pleadings and any 
filing made pursuant to the Commissions ex parte rules.

E. Ex Parte Rules

    Because of the broad policy issues involved, and because these 
proceedings are generally declaratory ruling proceedings, section 253 
petition proceedings initially will be considered ``permit-but-
disclose'' proceedings. Accordingly, ex parte presentations will be 
permitted (unless the Commission designates a particular proceeding 
``restricted''), provided they are disclosed in conformance with 
Commission ex parte rules. In addition, parties should notify all 
parties of any ex parte communications.
    The Commission expects to be kept informed, through ex parte 
presentations, of any discussions between the petitioner and the 
relevant state or local entity regarding resolution of the issues 
raised in the petition.
    Notwithstanding the above, the Commission may, by subsequent public 
notice, prohibit all communication with Commission personnel regarding 
the petition during a defined period preceding the anticipated release 
date of the Commission's order regarding the petition.

FCC Notice to Individuals Required by the Paperwork Reduction Act

    Pursuant to section 253 of the Communications Act of 1934, the 
Commission, subject to enumerated exceptions, must preempt the 
enforcement of any state or local statute, regulation, or legal 
requirement that prohibits or has the effect of prohibiting the ability 
of any entity to provide any interstate or intrastate 
telecommunications service. Parties may file petitions seeking 
preemption under section 253. The Commission must provide an 
opportunity for public comment. All of the information collected would 
be used to determine whether the state or local government has imposed 
a legal requirement that violates section 253 of the Act. Obligation to 
respond to this collection of information is not mandatory.
    The public reporting for this collection of information is 
estimated to average 78.5 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the required data, and completing and reviewing the 
collection of information. If you have any comments on this burden 
estimate, or how we can improve the collection, please write to the 
Federal Communications Commission, AMD-PERM, Paperwork

[[Page 66809]]

Reduction Project (3060-0859), Washington, DC 20554. We will also 
accept your comments on the burden estimate via the Internet if you 
send them to [email protected]. Please do not send petitions to this 
address.
    Remember--You are not required to respond to a collection of 
information sponsored by the Federal government, and the government may 
not conduct or sponsor this collection, unless it displays a currently 
valid OMB control number or if we fail to provide you with this notice. 
This collection has been assigned an OMB control number of 3060-0859. 
The foregoing notice is required by the Paperwork Reduction Act of 
1995, Public Law 104-13, October 1, 1995, 44 U.S.C. Section 3507.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-32158 Filed 12-2-98; 8:45 am]
BILLING CODE 6712-01-p