[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.
[[Page 48036]]
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
[[Page 48037]]
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
[[Page 48038]]
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
jboley@fcc.gov and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--
17th Street, N.W., Washington, DC 20503 or via the Internet at
fain__t@al.eop.gov. 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: smaher@fcc.gov, 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
