[Federal Register Volume 74, Number 243 (Monday, December 21, 2009)]
[Notices]
[Pages 67871-67876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30291]
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FEDERAL COMMUNICATIONS COMMISSION
[WT Docket No. 08-165; FCC 09-99]
Petition for Declaratory Ruling To Clarify Provisions of Section
332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under
Section 253 State and Local Ordinances That Classify All Wireless
Siting Proposals as Requiring a Variance
AGENCY: Federal Communications Commission.
ACTION: Declaratory ruling.
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SUMMARY: In this document, the Commission addresses a Petition for
Declaratory Ruling (Petition) filed by CTIA--The Wireless
Association[reg] (CTIA) seeking clarification of provisions in Sections
253 and 332(c)(7) of the Communications Act of 1934, as amended
(Communications Act), regarding State and local review of
[[Page 67872]]
wireless facility siting applications. Because delays in the zoning
process have hindered the deployment of new wireless infrastructure,
the Commission defines timeframes for State and local action on
wireless facilities siting requests, while also preserving the
authority of States and localities to make the ultimate determination
on local zoning and land use policies. The intended effect of the
ruling is to promote the deployment of broadband and other wireless
services by reducing delays in the construction and improvement of
wireless networks.
DATES: Effective November 18, 2009.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Angela Kronenberg, Spectrum &
Competition Policy Division, Wireless Telecommunications Bureau,
Federal Communications Commission, 445 12th Street, SW., Washington, DC
20554.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Declaratory Ruling (Ruling) in WT Docket No. 08-165 released November
18, 2009. The complete text of the Ruling is available for public
inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday
or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC
20554. The Ruling may also be purchased from the Commission's
duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals
II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554,
telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI
at its Web site: http://www.BCPIWEB.com. When ordering documents from
BCPI please provide the appropriate FCC document number, FCC 09-99. The
Ruling is also available on the Internet at the Commission's website
through its Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.
Paperwork Reduction Act of 1995 Analysis: Document FCC 09-99 does
not contain new information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition,
it does not contain any new or modified ``information collection burden
for small business concerns with fewer than 25 employees,'' pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198.
See 47 U.S.C. 3506(c)(4).
Synopsis
I. Introduction
1. On July 11, 2008, CTIA (Petitioner) filed its Petition
requesting that the Commission issue a Declaratory Ruling clarifying
provisions in sections 253 and 332(c)(7) of the Communications Act
regarding the timeframes in which zoning authorities must act on siting
requests for wireless towers or antenna sites, their power to restrict
competitive entry by multiple providers in a given area, and their
ability to impose certain procedural requirements on wireless service
providers. In the Ruling, the Commission grants the Petition in part
and denies it in part to ensure that both localities and service
providers may have an opportunity to make their case in court, as
contemplated by section 332(c)(7) of the Act.
II. Discussion
2. In the Ruling, the Commission finds it has the authority to
interpret section 332(c)(7), and it addresses the three issues raised
in the Petition. On the first issue, the Commission concludes that it
should define what constitutes a presumptively ``reasonable period of
time'' beyond which inaction on a personal wireless service facility
siting application will be deemed a ``failure to act.'' The Commission
then determines that in the event a State or local government fails to
act within the appropriate time period, the applicant is entitled to
bring an action in court under section 332(c)(7)(B)(v). At that point,
the State or local government will have the opportunity to present to
the court arguments to show that additional time would be reasonable,
given the nature and scope of the siting application at issue. The
Commission next concludes that the record supports setting the time
limits at 90 days for State and local governments to process
collocation applications, and 150 days for them to process applications
other than collocations. On the second issue raised by the Petition,
the Commission finds that it is a violation of section
332(c)(7)(B)(i)(II) for a State or local government to deny a personal
wireless service facility siting application solely because that
service is available from another provider. On the third issue, because
the Petitioner has not presented any evidence of a specific
controversy, the Commission denies the request that it find that a
State or local regulation that explicitly or effectively requires a
variance or waiver for every wireless facility siting violates section
253(a). Finally, the Commission addresses other issues raised in the
record, including dismissal of a Cross-Petition filed by the EMR Policy
Institute (EMRPI) that, inter alia, seeks a declaratory ruling relating
to the Commission's regulations regarding exposure to radio frequency
(RF) emissions.
3. Time for Acting on Facility Siting Applications. Section
332(c)(7)(B)(ii) of the Communications Act states that State or local
governments must act on requests for personal wireless service facility
sitings ``within a reasonable period of time.'' Section 332(c)(7)(B)(v)
further provides that ``[a]ny person adversely affected by any final
action or failure to act'' by a State or local government on a personal
wireless service facility siting application ``may, within 30 days
after such action or failure to act, commence an action in any court of
competent jurisdiction.''
4. The Commission finds that the evidence in the record
demonstrates that personal wireless service providers have often faced
lengthy and unreasonable delays in the consideration of their facility
siting applications, and that the persistence of such delays is
impeding the deployment of advanced and emergency services. To provide
guidance, remove uncertainty and encourage the expeditious deployment
of wireless broadband services, the Commission therefore determines
that it is in the public interest to define the time period after which
an aggrieved party can seek judicial redress for a State or local
government's inaction on a personal wireless service facility siting
application. Specifically, the Commission finds that a ``reasonable
period of time'' is, presumptively, 90 days to process personal
wireless service facility siting applications requesting collocations,
and, also presumptively, 150 days to process all other applications.
Accordingly, if State or local governments do not act upon applications
within those timeframes, then a ``failure to act'' has occurred and
personal wireless service providers may seek redress in a court of
competent jurisdiction within 30 days, as provided in section
332(c)(7)(B)(v). The State or local government, however, will have the
opportunity to rebut the presumption of reasonableness.
5. The Commission finds that the record shows that unreasonable
delays are occurring in a significant number of cases. For example, the
Commission references data that the Petitioner compiled from its
members showing certain personal wireless service facility siting
applications had been pending final action for more than one year, and
some more than 3 years. In addition, the Commission references several
wireless providers who supplemented the record
[[Page 67873]]
with their individual experiences in the personal wireless service
facility siting application process. The Commission states that the
record evidence demonstrates that unreasonable delays in the personal
wireless service facility siting applications process have obstructed
the provision of wireless services. Many wireless providers have faced
lengthy and costly processing. The Commission disagrees with State and
local government commenters that argue that the Petition fails to
provide any credible or probative evidence that any local government is
engaged in delay with respect to processing personal wireless service
facility siting applications, and that there is insufficient evidence
on the record as a whole to justify Commission action. To the contrary,
given the extensive statistical evidence provided by the Petitioner and
supporting commenters, and the absence of more than isolated anecdotes
in rebuttal, the Commission finds that the record amply establishes the
occurrence of significant instances of delay.
6. The Commission states that delays in the processing of personal
wireless service facility siting applications are particularly
problematic as consumers await the deployment of advanced wireless
communications services, including broadband services, in all
geographic areas in a timely fashion. Wireless providers currently are
in the process of deploying broadband networks which will enable them
to compete with the services offered by wireline companies. State and
local practices that unreasonably delay the siting of personal wireless
service facilities threaten to undermine achievement of Commission
goals and impede the promotion of advanced services and competition
deemed critical by Congress. In addition, the Commission states that
deployment of facilities without unreasonable delay is vital to promote
public safety, including the availability of wireless 911, throughout
the nation.
7. Given the evidence of unreasonable delays and the public
interest in avoiding such delays, the Commission concludes that it
should define the statutory terms ``reasonable period of time'' and
``failure to act'' in order to clarify when an adversely affected
service provider may take a dilatory State or local government to
court. Specifically, the Commission finds that when a State or local
government does not act within a ``reasonable period of time'' under
section 332(c)(7)(B)(i)(II), a ``failure to act'' occurs within section
332(c)(7)(B)(v). And because an ``action or failure to act'' is the
statutory trigger for seeking judicial relief, the Commission's
clarification of these terms will give personal wireless service
providers certainty as to when they may seek redress for inaction on an
application. The Commission expects that such certainty will enable
personal wireless service providers more vigorously to enforce the
statutory mandate against unreasonable delay that impedes the
deployment of services that benefit the public. At the same time, the
Commission's action will provide guidance to State and local
governments as to what constitutes a reasonable timeframe in which they
are expected to process applications, but recognizes that certain cases
may legitimately require more processing time.
8. By defining the period after which personal wireless service
providers have a right to seek judicial relief, the Commission both
ensures timely State and local government action and preserves
incentives for providers to work cooperatively with them to address
community needs. Wireless providers will have the incentive to resolve
legitimate issues raised by State or local governments within the
timeframes defined as reasonable, or they will incur the costs of
litigation and may face additional delay if the court determines that
additional time was, in fact, reasonable under the circumstances.
Similarly, State and local governments will have a strong incentive to
resolve each application within the timeframe defined as reasonable, or
they will risk issuance of an injunction granting the application. In
addition, specific timeframes for State and local government
deliberations will allow wireless providers to better plan and allocate
resources. The Commission states that this is especially important as
providers plan to deploy their new broadband networks.
9. The Commission rejects the Petition's proposals that the
Commission go farther and either deem an application granted when a
State or local government has failed to act within a defined timeframe
or adopt a presumption that the court should issue an injunction
granting the application. Section 332(c)(7)(B)(v) states that when a
failure to act has occurred, aggrieved parties should file with a court
of competent jurisdiction within 30 days and that ``[t]he court shall
hear and decide such action on an expedited basis.'' The provision
indicates Congressional intent that courts should have the
responsibility to fashion appropriate case-specific remedies. As the
Petitioner notes, many courts have issued injunctions granting
applications upon finding a violation of section 332(c)(7)(B). However,
the case law does not establish that an injunction granting the
application is always or presumptively appropriate when a ``failure to
act'' occurs. To the contrary, in those cases where courts have issued
such injunctions upon finding a failure to act within a reasonable
time, they have done so only after examining all the facts in the case.
While the Commission agrees that injunctions granting applications may
be appropriate in many cases, the proposals in personal wireless
service facility siting applications and the surrounding circumstances
can vary greatly. It is therefore important for courts to consider the
specific facts of individual applications and adopt remedies based on
those facts.
10. The Commission also disagrees with commenters that argue that
the statutory scheme precludes the Commission from interpreting the
terms ``reasonable period of time'' and ``failure to act'' by reference
to specific timeframes. Given the opportunities that the Commission has
built into the process for ensuring individualized consideration of the
nature and scope of each siting request, the Commission finds their
arguments unavailing. Congress did not define either ``reasonable
period of time'' or ``failure to act'' in the Communications Act. The
term ``reasonable'' is ambiguous and courts owe substantial deference
to the interpretation that the Commission accords to ambiguous terms.
The Commission found in the local cable franchising context that the
term ``unreasonably refuse to award'' a local franchise authorization
in section 621(a)(1) of the Communications Act is ambiguous and subject
to the Commission's interpretation. As in the local franchising
context, it is not clear from the Communications Act what is a
reasonable period of time to act on an application or when a failure to
act occurs. By defining timeframes, the Commission states it will lend
clarity to these provisions, giving wireless providers and State and
local zoning authorities greater certainty in knowing what period of
time is ``reasonable,'' and ensuring that the point at which a State or
local authority ``fails to act'' is not left so ambiguous that it risks
depriving a wireless siting applicant of its right to redress.
11. The Commission's construction of the statutory terms
``reasonable period of time'' and ``failure to act'' takes into
account, on several levels, the section 332(c)(7)(B)(ii) requirement
that the ``nature and scope'' of the request be considered and the
legislative history's
[[Page 67874]]
indication that Congress intended the decisional timeframe to be the
``usual period'' under the circumstances for resolving zoning matters.
First, the timeframes the Commission defines are based on actual
practice as shown in the record. Most statutes and government processes
discussed in the record already conform to the timeframes the
Commission defines in the Ruling. As such, the timeframes do not
require State and local governments to give preferential treatment to
personal wireless service providers over other types of land use
applications. Second, the Commission considers the nature and scope of
the request by defining a shorter timeframe for collocation
applications, consistent with record evidence that collocation
applications generally are considered at a faster pace than other tower
applications. Third, under the regime that the Commission adopts, the
State or local authority will have the opportunity, in any given case
that comes before a court, to rebut the presumption that the
established timeframes are reasonable. Finally, the Commission has
provided for further adjustments to the presumptive deadlines in order
to ensure that the timeframes accommodate certain contingencies that
may arise in individual cases, including where the applicant and the
State or local authority agree to extend the time, where the
application has already been pending for longer than the presumptive
timeframe as of the date of the Ruling, and where the application
review process has been delayed by the applicant's failure to submit a
complete application or to file necessary additional information in a
timely manner. For all these reasons, the Commission concludes that the
Commission's clarification of the broad terms ``reasonable period of
time'' and ``failure to act'' is consistent with the statutory scheme.
12. The Petition proposes a 45-day timeframe for collocation
applications and a 75-day timeframe for all other applications. While
the Commission recognizes that many applications can and perhaps should
be processed within the timeframes proposed by the Petitioner, the
Commission is concerned that these timeframes may be insufficiently
flexible for general applicability. In particular, some applications
may reasonably require additional time to explore collaborative
solutions among the governments, wireless providers, and affected
communities. Also, State and local governments may sometimes need
additional time to prepare a written explanation of their decisions as
required by section 332(c)(7)(B)(iii), and the timeframes as proposed
may not accommodate reasonable, generally applicable procedural
requirements in some communities. Although the reviewing court will
have the opportunity to consider such unique circumstances in
individual cases, the Commission states that it is important for
purposes of certainty and orderly processing that the timeframes for
determining when suit may be brought in fact accommodate reasonable
processes in most instances.
13. Based on the Commission's review of the record as a whole, it
finds 90 days to be a generally reasonable timeframe for processing
collocation applications and 150 days to be a generally reasonable
timeframe for processing applications other than collocations. Thus, a
lack of a decision within these timeframes presumptively constitutes a
failure to act under section 332(c)(7)(B)(v). The Commission finds that
collocation applications can reasonably be processed within 90 days.
Collocation applications are easier to process than other types of
applications as they do not implicate the effects upon the community
that may result from new construction. In particular, the addition of
an antenna to an existing tower or other structure is unlikely to have
a significant visual impact on the community. Therefore, many
jurisdictions do not require public notice or hearings for
collocations. In addition, several State statutes already require
application processing for collocations within 90 days. For purposes of
this standard, an application is a request for collocation if it does
not involve a ``substantial increase in the size of a tower'' as
defined in the Nationwide Programmatic Agreement for the Collocation of
Wireless Antennas, 47 CFR part 1, Appendix B. Such a limitation will
help to ensure that State and local governments will have a reasonable
period of time to review those applications that may require more
extensive consideration.
14. The Commission further finds that the record shows that a 150-
day processing period for applications other than collocations is a
reasonable standard that is consistent with most statutes and local
processes. Based on the record, the Commission does not agree that the
its imposition of the 90-day and 150-day timeframes will disrupt many
of the processes State and local governments already have in place for
personal wireless service facility siting applications.
15. Section 332(c)(7)(B)(v) provides that an action for judicial
relief must be brought ``within 30 days'' after a State or local
government action or failure to act. Thus, if a failure to act occurs
90 days (for a collocation) or 150 days (in other cases) after an
application is filed, any court action must be brought by day 120 or
180 on penalty of losing the ability to sue. The Commission concludes
that a rigid application of the cutoff to cases where the parties are
working cooperatively toward a consensual resolution would be contrary
to both the public interest and Congressional intent. Accordingly, the
Commission clarifies that a ``reasonable period of time'' may be
extended beyond 90 or 150 days by mutual consent of the personal
wireless service provider and the State or local government, and that
in such instances, the commencement of the 30-day period for filing
suit will be tolled.
16. To the extent existing State statutes or local ordinances set
different review periods than the Commission does in the Ruling, the
Commission clarifies that its interpretation of section 332(c)(7) is
independent of the operation of these statutes or ordinances. Thus,
where the review period in a State statute or local ordinance is
shorter than the 90-day or 150-day period, the applicant may pursue any
remedies granted under the State or local regulation when the
applicable State or local review period has lapsed. However, the
applicant must wait until the 90-day or 150-day review period has
expired to bring suit for a ``failure to act'' under section
332(c)(7)(B)(v). Conversely, if the review period in the State statute
or local ordinance is longer than the 90-day or 150-day review period,
the applicant may bring suit under section 332(c)(7)(B)(v) after 90
days or 150 days, subject to the 30-day limitation period on filing,
and may consider pursuing any remedies granted under the State or local
regulation when that applicable time limit has expired. Of course, the
option is also available in these cases to toll the period under
section 332(c)(7) by mutual consent.
17. The Commission further concludes that given the ambiguity that
has prevailed as to when a failure to act occurs, it is reasonable to
give State and local governments an additional period to review
currently pending applications before an applicant may file suit.
Accordingly, as a general rule, for currently pending applications the
Commission deems that a ``failure to act'' will occur 90 days (for
collocations) or 150 days (for other applications) after the release of
the Ruling. The
[[Page 67875]]
Commission recognizes, however, that some applications have been
pending for a very long period, and that delaying resolution for an
additional 90 or 150 days may impose an undue burden on the applicant.
Therefore, a party whose application has been pending for the
applicable timeframe that the Commission establishes or longer as of
the release date of the Ruling may, after providing notice to the
relevant State or local government, file suit under section
332(c)(7)(B)(v) if the State or local government fails to act within 60
days from the date of such notice. The notice provided to the State or
local government shall include a copy of the Ruling. The Commission
states that this option does not apply to applications that have
currently been pending for less than 90 or 150 days, and in these
instances the State or local government will have 90 or 150 days from
the release of the Ruling before it will be considered to have failed
to act. The Commission finds that such a transitional regime best
balances the interests of applicants in finality with the needs of
State and local governments for adequate time to implement the
Commission's interpretation of section 332(c)(7).
18. Finally, the Commission states that these timeframes should
take into account whether applications are complete. The Commission
finds that when applications are incomplete as filed, the timeframes do
not include the time that applicants take to respond to State and local
governments' requests for additional information. The Commission also
finds that reviewing authorities should be bound to notify applicants
within a reasonable period of time that their applications are
incomplete. It is important that State and local governments obtain
complete applications in a timely manner, and such a finding will
provide the incentive for wireless providers to file complete
applications in a timely fashion. The Commission finds, based on the
record, that a review period of 30 days gives State and local
governments sufficient time for reviewing applications for
completeness, while protecting applicants from a last minute decision
that applications should be denied as incomplete.
19. Accordingly, the Commission concludes that the time it takes
for an applicant to respond to a request for additional information
will not count toward the 90 or 150 days only if that State or local
government notifies the applicant within the first 30 days that its
application is incomplete. The Commission finds that the record shows
that the total amount of time, including the review period for
application completeness, is generally consistent with those States
that specifically include such a review period.
20. Prohibition of Service by a Single Provider. The Petitioner
asks the Commission to conclude that State or local regulation that
effectively prohibits one carrier from providing service because
service is available from one or more other carriers violates section
332(c)(7)(B)(i)(II) of the Act. The Commission concludes that a State
or local government that denies an application for personal wireless
service facilities siting solely because one or more carriers serve a
given geographic market has engaged in unlawful regulation that
``prohibits or ha[s] the effect of prohibiting the provision of
personal wireless services,'' within the meaning of section
332(c)(7)(B)(i)(II).
21. Section 332(c)(7)(B)(i)(II) provides, as a limitation on the
statute's preservation of local zoning authority, that a State or local
government regulation of personal wireless facilities ``shall not
prohibit or have the effect of prohibiting the provision of personal
wireless services.'' The Commission notes that courts of appeals
disagree on whether a State or local policy that denies personal
wireless service facility siting applications solely because of the
presence of another carrier should be treated as a siting regulation
that prohibits or has the effect of prohibiting such services. Thus, a
controversy exists that is appropriately resolved by declaratory
ruling.
22. The Commission agrees with the Petitioner that the fact that
another carrier or carriers provide service to an area is an inadequate
defense under a claim that a prohibition of service exists, and the
Commission concludes that any other interpretation of section
332(c)(7)(B)(i)(II) would be inconsistent with the Telecommunications
Act's pro-competitive purpose. While the Commission acknowledges that
the provision could be interpreted in the manner endorsed by several
courts--as a safeguard against a complete ban on all personal wireless
service within the State or local jurisdiction, which would have no
further effect if a single provider is permitted to provide its service
within the jurisdiction--the Commission concludes that under the better
reading of the statute, the limitation of State/local authority applies
not just to the first carrier to enter into the market, but also to all
subsequent entrants.
23. The Commission reaches such a conclusion for several reasons.
First, the Commission's interpretation is consistent with the statutory
language referring to the prohibition of ``the provision of personal
wireless services'' rather than the singular term ``service.'' Second,
an interpretation that would regard the entry of one carrier into the
locality as mooting a subsequent examination of whether the locality
has improperly blocked personal wireless services ignores the
possibility that the first carrier may not provide service to the
entire locality, and a zoning approach that subsequently prohibits or
effectively prohibits additional carriers therefore may leave segments
of the population unserved or underserved. Third, the Commission finds
unavailing the concern expressed by the Fourth Circuit (and some other
courts) that giving each carrier an individualized right under section
332(c)(7)(B)(i)(II) to contest an adverse zoning decision as an
unlawful prohibition of its service ``would effectively nullify local
authority by mandating approval of all (or nearly all) applications.''
Rather, the Commission construes the statute to bar State and local
authorities from prohibiting the provision of services of individual
carriers solely on the basis of the presence of another carrier in the
jurisdiction; State and local authority to base zoning regulation on
other grounds is left intact by the Ruling. Finally, the Commission's
construction of the provision achieves a balance that is most
consistent with the relevant goals of the Communications Act to improve
service quality and lower prices for consumers.
24. The Commission's determination also serves the Act's goal of
preserving the State and local authorities' ability to reasonably
regulate the location of facilities in a manner that operates in
harmony with federal policies that promote competition among wireless
providers. Nothing the Commission does in the Ruling interferes with
these authorities' consideration of and action on the issues that
traditionally inform local zoning regulation. Thus, where a bona fide
local zoning concern, rather than the mere presence of other carriers,
drives a zoning decision, it should be unaffected by the Commission's
Ruling. The Commission observes that a decision to deny a personal
wireless service facility siting application that is based on the
availability of adequate collocation opportunities is not one based
solely on the presence of other carriers, and so is unaffected by the
Commission's interpretation of the statute in the Ruling.
25. The Commission disagrees with the assertion that granting the
Petition could have a negative impact on airports by increasing the
number of potential obstructions to air navigation. As the
[[Page 67876]]
Federal Aviation Administration notes, the Commission's action on the
Petition does not alter or amend the Federal Aviation Administration's
regulatory requirements and process. The Commission also rejects the
assertion that the declaration the Petitioner seeks would violate
section 332(c)(7)(A)'s provision that the authority of a State or local
government over decisions regarding the placement, construction, and
modification of personal wireless service facilities is limited only by
the limitations imposed in subparagraph (B). The Commission notes that
the denial of a single application may sometimes establish a violation
of section 332(c)(7)(B)(ii) if it demonstrates a policy that has the
effect of prohibiting the provision of personal wireless services as
interpreted herein.
26. Ordinances Requiring Variances. The Petitioner requests that
the Commission preempt, under section 253(a) of the Act, local
ordinances and State laws that effectively require a wireless service
provider to obtain a variance, regardless of the type and location of
the proposal, before siting facilities. Because the Petitioner does not
seek actual preemption of any ordinance by its Petition, nor does it
present the Commission with sufficient information or evidence of a
specific controversy on which to base such action or ruling, the
Commission declines to issue a declaratory ruling that zoning
ordinances requiring variances for all wireless siting requests are
unlawful and will be struck down if challenged in the context of a
section 253 preemption action.
27. Other Issues. Numerous parties argue that the Petitioner failed
to follow the Commission's service requirements with respect to
preemption petitions. 47 CFR 1.1206(a), Note 1, of the Commission's
rules requires that a party filing either a petition for declaratory
ruling seeking preemption of State or local regulatory authority, or a
petition for relief under section 332(c)(7)(B)(v), must serve the
original petition on any State or local government whose actions are
cited as a basis for requesting preemption. By its terms, the service
requirement does not apply to a petition that cites examples of the
practices of unidentified jurisdictions to demonstrate the need for a
declaratory ruling interpreting provisions of the Communications Act.
These parties' principal argument is that the Commission should require
the Petitioner to identify the jurisdictions that it references
anonymously, which, they assert, would then trigger the service
requirement. However, nothing in the rules requires that these
jurisdictions be identified.
28. Several commenters argue that the Commission should deny the
Petition in order to protect local citizens against the health hazards
that these commenters attribute to RF emissions. To the extent
commenters argue that State and local governments require flexibility
to deny personal wireless service facility siting applications or delay
action on such applications based on the perceived health effects of RF
emissions, such authority is denied by statute under section
332(c)(7)(B)(iv). The Commission concludes that such arguments are
outside the scope of the proceeding.
29. In its Cross-Petition, EMRPI contends that in light of
additional data that has been compiled since 1996, the RF safety
regulations that the Commission adopted at that time are no longer
adequate. The Commission states that EMPRI's request to revisit the
regulations is also outside the scope of the current proceeding, and
the Commission dismisses EMRPI's Cross-Petition.
III. Conclusion
30. For the reasons discussed in the Ruling, the Commission grants
in part and denies in part CTIA's Petition for a Declaratory Ruling
interpreting provisions of section 332(c)(7) of the Communications Act.
By clarifying the statute, the Commission recognizes Congress' dual
interests in promoting the rapid and ubiquitous deployment of advanced,
innovative, and competitive services, and in preserving the substantial
area of authority that Congress reserved to State and local governments
to ensure that personal wireless service facility siting occurs in a
manner consistent with each community's values.
IV. Ordering Clauses
31. It is ordered that, pursuant to sections 4(i), 4(j), 201(b),
253(a), 303(r), and 332(c)(7) of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), (j), 201(b), 253(a), 303(r), 332(c)(7), and
Sec. 1.2 of the Commission's rules, 47 CFR 1.2, the Petition for
Declaratory Ruling filed by CTIA--The Wireless Association is granted
to the extent specified in the Ruling and otherwise is denied.
32. It is further ordered that, pursuant to sections 4(i), 4(j),
and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), (j), 332(c)(7), and Sec. 1.2 of the Commission's rules, 47 CFR
1.2, the Cross-Petition filed by the EMR Policy Institute is dismissed.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E9-30291 Filed 12-18-09; 8:45 am]
BILLING CODE 6712-01-P