E8-20010. Wireless Telecommunications Bureau Seeks Comment on Petition for Declaratory Ruling by CTIA-The Wireless Association To Clarify Provisions of Section 332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and ...

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

In this document, comment is sought on a July 11, 2008 petition for Declaratory Ruling (Petition) filed by CTIA—The Wireless Association (Petitioner). The Petitioner asks the Federal Communications Commission to clarify the provisions of section 332(c)(7)(B)(v) of the Communications Act, as amended, that Petitioner contends are ambiguous and that have been unreasonably interpreted. Petitioner further requests that the Commission preempt local ordinances and state laws that Petitioner believes violate section 253(a) of the Communications Act, as amended.

DATES:

Interested parties may file comments on or before September 15, 2008, and reply comments on or before September 30, 2008.

ADDRESSES:

You may submit comments, identified by WT Docket No. 08-165, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Federal Communications Commission's Web site: http://www.fcc.gov/​cgb/​ecfs/​. Follow the instructions for submitting comments.
• Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: [e-mail] or phone: [phone] or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Michael Rowan, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau at [phone] or [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's public notice released on August 14, 2008. The full text of the public notice is available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling [phone], facsimile [phone], or e-mail [e-mail]. Copies of the public notice also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number, WT Docket No. 08-165. Additionally, the complete item is available on the Federal Communications Commission's Web site at http://www.fcc.gov.

On July 11, 2008, CTIA—The Wireless Association (CTIA) filed a petition requesting that the Federal Communications Commission (Commission) issue a Declaratory Ruling clarifying provisions of the Communications Act of 1934, as amended (Communications Act) regarding state and local review of wireless facility siting applications.^[1] CTIA seeks clarification of provisions in section 332(c)(7) of the Communications Act that it contends are ambiguous and that it claims have been interpreted in a manner that has allowed certain zoning authorities to impose unreasonable impediments to wireless facility siting and the provision of wireless services. CTIA also requests that the Commission preempt local ordinances and state laws that it states subject wireless facility siting applications to unique, burdensome requirements, in violation of section 253(a) of the Communications Act, which bars state and local laws that “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” ^[2]

Specifically, in its petition, CTIA asks the Commission to take four actions relating to the time frames in which zoning authorities must act on siting requests, 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. First, to eliminate an ambiguity that CTIA contends currently exists in section 332(c)(7)(B)(v) of the Communications Act, CTIA asks the Commission to clarify the time period in which a state or local zoning authority will be deemed to have failed to act on a wireless facility siting application. CTIA states that “the Commission should issue a declaratory ruling explaining that (1) a failure to act on a wireless facility siting application only involving collocation occurs if there is no final action within 45 days from submission of the request to the local zoning authority; and (2) a failure to act on any other wireless siting facility application occurs if there is no final action within 75 days from submission of the request to the local zoning authority.” ^[3] Second, citing the requirement in section 332(c)(7)(B)(ii) of the Communications Act that state and local governments act on wireless facility siting applications within a reasonable time, CTIA asks the Commission to implement procedural steps whereby, if a zoning authority fails to act within the above time frames, the application shall be “deemed granted.” Alternatively, CTIA asks the Commission to establish a presumption that entitles an applicant to a court-ordered injunction granting the application unless the zoning authority can justify the delay. Third, CTIA asks the Commission to clarify that section 332(c)(7)(B)(i)(II), which forbids state and local decisions that “prohibit or have the effect of prohibiting the provision of personal wireless services,” ^[4] bars zoning decisions that have the effect of preventing a specific provider from providing service to a location on the basis of another provider's presence there. Finally, CTIA requests that the Commission preempt, under section 253 of the Communications Act, local ordinances and state laws that automatically require a wireless service provider to obtain a variance before siting facilities.

Procedural Matters

This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.^[5] Parties making oral ex parte presentations in this proceeding are reminded that memoranda summarizing the presentation must contain the presentation's substance and not merely list the subjects discussed.^[6] More than a one- or two-sentence description of the views and arguments presented is generally required.^[7]

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/​cgb/​ecfs/​ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.
• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to [e-mail], and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Parties shall send one copy of their comments and reply comments to Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, [phone], e-mail [e-mail]. Comments filed in response to this public notice will be available for public inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number, WT Docket No. 08-165. The comments may also be purchased from Best Copy and Printing, Inc., telephone [phone], facsimile [phone], or e-mail [e-mail].

Federal Communications Commission.

James D. Schlichting,

Acting Chief, Wireless Telecommunications Bureau.

Footnotes

1.  In the Matter of 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, Petition for Declaratory Ruling, WT Docket No. 08-165, filed July 11, 2008 (Petition).

2.  47 U.S.C. 253(a).

3.  Petition at iii.

4.  47 U.S.C. 332(c)(7)(B)(i)(II).

5.  See 47 CFR 1.1200(a), 1.1206.

6.  See Commission Emphasizes the Public's Responsibilities in Permit-But-Disclose Proceedings, Public Notice, 15 FCC Rcd 19945 (2000).

7.  See 47 CFR 1.1206(b)(2). Other rules pertaining to oral and written presentations are also set forth in 1.1206(b). See 47 CFR 1.1206(b).