Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Transmission Facilities

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 97-296]

Preemption of State and Local Zoning and Land Use Restrictions on

the Siting, Placement and Construction of Broadcast Transmission

Facilities

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission issues this Notice of Proposed Rule Making to

consider whether and in what circumstances to preempt certain state and

local zoning and land use ordinances which present an obstacle to the

rapid implementation of digital television (``DTV'') service. Having

found that the accelerated roll-out is essential to the success of

over-the-air DTV, the Commission set out an accelerated construction

schedule for DTV facilities. To the extent that state and local

restrictions stand as an obstacle to the achievement of its purposes

the Commission has the authority to preempt state or local law. In this

Notice of Proposed Rule Making, the Commission seeks comment on whether

and in what circumstances it should preempt state or local action or

inaction that interferes with the rapid roll-out of DTV.

DATES: Comments are due on or before October 30, 1997 and reply

comments are due on or before December 1, 1997.

FOR FURTHER INFORMATION CONTACT: Keith Larson, Assistant Bureau Chief

for Engineering or Susanna Zwerling, Policy and Rules Division, Mass

Media Bureau (202) 418-2140.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice

of Proposed Rule Making, FCC 97-296 adopted August 18, 1997 and

released August 19, 1997. The full text of this Commission Notice is

available for inspection and copying during normal business hours in

the FCC Dockets Branch (Room 239), 1919 M Street NW, Washington, DC.

The complete text of this Notice may also be purchased from the

Commission's copy contractor, International Transcription Services

(202) 857-3800 2100 M Street, NW., Suite 140, Washington, DC 20037.

Synopsis of Notice

I. Introduction

1. The Commission is undertaking this rule making to consider

whether and in what circumstances to preempt certain state and local

zoning and land use ordinances that present obstacles to the rapid

implementation of DTV. Such ordinances may inhibit the resiting of

antennas made necessary by the implementation of DTV. This issue was

brought before the Commission in a ``Petition for Further Notice of

Proposed Rule Making'' filed jointly by the National Association of

Broadcasters and the Association for Maximum Service Television

(``Petitioners'').1

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\1\ This petition was filed in the Commission's Digital

Television proceeding Fifth Report and Order in MM Docket No. 87-

268, FCC 97-116 (April 22, 1997) (Fifth Report and Order), 62 FR

26966 (May 16, 1997). The Commission will, however, treat the

Petition as one filed pursuant to 47 CFR 1.401 seeking the

institution of a new rule making proceeding.

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II. Background

2. In its Fifth Report and Order in the DTV proceeding, the

Commission adopted an accelerated schedule for construction of DTV

transmission facilities. The construction schedule requires affiliates

of the top four networks to be on the air with digital signals by May

1, 1999 in the top ten markets and by November 1, 1999 in markets 11-

30. All other commercial stations must construct their DTV facilities

by May 1, 2002, and noncommercial stations by May 1, 2003. Subject to

biennial review and statutory exceptions, all stations are to return

their analog spectrum by 2006.2

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\2\ Fifth Report and Order, supra at Paras. 99, 100. See Also

Balanced Budget Act of 1997 (``BBA''), Pub. L. 105-33, 111 Stat. 251

(1997) (codified at 47 U.S.C. 309(j)(14) (A)-(B)) (establishing

statutory target date for return of the analog spectrum and setting

out exceptions to that deadline).

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3. The accelerated DTV transition schedule will require extensive

tower modification and construction. Petitioners state that local

regulation presents obstacles to this construction schedule in that the

levels of review required in the administration of such restrictions

can last several months.

4. To facilitate compliance with the DTV construction schedule,

Petitioners ask the Commission to adopt a rule allowing the Commission

to preempt state and local zoning and other land use regulations to the

extent they unreasonably delay the DTV roll-out and other ongoing

broadcast transmission facilities construction. The proposed rule

provides specific time limits for state and local government action in

response to requests for approval of the placement, construction or

modification of broadcast transmission facilities. The Petitioners'

proposed rule would require action within 21 days with respect to

modifications of existing broadcast transmission facilities where no

change in location or height is proposed; within 30 days with respect

to the relocation of an existing broadcast transmission facility from a

currently approved location to another location within 300 feet, or the

consolidation of two or more broadcast transmission facilities, or the

increase in the height of an existing tower; and within 45 days for all

other requests. Failure to act within these time limits would cause the

request to be deemed granted. The Petitioners propose that a

broadcaster receiving an adverse decision could, within 30 days of the

decision, petition the Commission for a declaratory ruling on which the

Commission, in turn, would have 30 days in which to act. The

Petitioners' proposed rule would remove from local consideration (1)

regulations based on the environmental or health effects of radio

frequency (``RF'') emissions; and (2) interference with other

telecommunications signals and consumer electronics devices to the

extent that the facility complies with Commission regulations. It would

also remove from local consideration regulations concerning tower

marking and lighting provided that the facility complies with

applicable Commission or Federal Aviation Administration regulations.

The Petitioners' proposed rule would preempt all state and local

regulations that impair the ability of licensed broadcasters construct

or modify their facilities unless the state or local authority can

demonstrate that the regulation is related to health or safety

objectives.

III. Discussion

5. In its Fifth Report and Order the Commission set out the

rationale for an accelerated roll-out of DTV. The Commission found that

first, absent a speedy roll-out, other DTV services might achieve

levels of penetration that

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could preclude the success of over-the-air DTV; second, an expedited

construction schedule would promote DTV's competitive strength

internationally and spur the American economy; third, an accelerated

schedule would offset any individual broadcaster's disincentives to

begin digital transmissions quickly; and finally, a rapid roll-out

would ensure the swift recovery of broadcast spectrum. In order to

achieve these goals, the Commission instituted an aggressive but

reasonable construction schedule, aimed at exposing as many homes to

DTV as early as possible. The Fifth Report and Order acknowledged that

difficulties in obtaining zoning and other approvals may interfere with

a broadcaster's ability to meet construction schedule requirements. At

the same time, the Commission is sensitive to the important state and

local roles in zoning and land use matters and their longstanding

interest in the protection and welfare of their citizenry. Given the

countervailing importance of accelerated construction of DTV

transmission facilities, however, the Commission seeks to define those

circumstances in which it may be necessary to preempt state and local

regulations in order to achieve the benefits of a rapid roll-out of

DTV.

6. It is well settled that the Communications Act of 1934, as

amended (``Communications Act''), comprehensively provides for

regulation of radio frequency interference and that the FCC has

exclusive jurisdiction to resolve such questions.3 With

regard to interference affecting home consumer equipment in particular,

Congress plainly stated in the 1982 amendments to the Communications

Act that it intended federal regulation to completely occupy the field

to the exclusion of local and state governments.4 Thus, a

rule preempting state and local zoning regulations based on

electromagnetic interference would simply codify the existing state of

the law. With respect to other aspects of the proposed rule, the

Commission has authority to preempt where state or local law stands as

an obstacle to the accomplishment and execution of the full objectives

of Congress 5 or where the Commission finds preemption is

necessary to achieve its purposes within the scope of its delegated

authority.6

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\3\ See e.g., 47 U.S.C. 152(a), 301, 303(c), (d), (e), and

especially (f); Head v. New Mexico Board of Examiners in Optometry,

374 U.S. 424, 430 n.6 (1963) (the FCC's ``jurisdiction over

technical matters'' associated with the transmission of broadcast

signals is clearly exclusive); 960 Radio, Inc., FCC 85-578 (released

November 4, 1985) (preempts local zoning authority regulation of

interference caused by an FM station); Mobilecom of New York, Inc.,

2 FCC Rcd 5519 (Com. Car. Bur. 1987).

\4\ H.R. Report No. 765, 97th Cong. 2d Sess. 33 (1982),

reprinted in 1982 U.S. Code Cong. & Ad. News 2277 (amendment to

section 302(a) of Act) (``The Conference substitute is further

intended to clarify the reservation of exclusive jurisdiction to the

Federal Communications Commission over matters involving RFI. Such

matters shall not be regulated by local or state law, nor shall

radio transmitting be subject to local or state regulation as part

of any effort to resolve an RFI complaint.'')

\5\ Hines v. Davidowitz, 312 U.S. 52, 68 (1941).

\6\ City of New York v. FCC, 486 U.S. 57, 63 (1988). See

generally Louisiana Public Service Commission v. FCC, 476 U.S. 355,

368-69 (1986) and cases cited therein.

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7. Congress explicitly indicated its objective of a speedy recovery

of spectrum in the 1996 Telecommunications Act, requiring the

Commission to condition the grant of a DTV license on the return of

either that license or the original license for reallocation or

reassignment.7 As indicated above, the Commission found that

a speedy conversion would increase the likelihood of success of the DTV

roll-out and allow for the rapid recovery of spectrum, while a slower

conversion would undermine the success of DTV, and thereby impede the

recovery of spectrum. The Commission also determined that the prompt,

broad availability of DTV to the American public was an important

public interest goal.8

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\7\ 47 U.S.C. 336(c). See generally 47 U.S.C. 151 (purpose of

the Act includes ``to make available, so far as possible . . . a

rapid, efficient Nation-wide and world-wide radio communication

service with adequate facilities''); 47 U.S.C. 157 (``It shall be

the policy of the United States to encourage the provision of new

technologies and services to the public.'').

\8\ Fifth Report and Order, supra at para. 5.

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8. Local zoning and land use decisions that delay construction of

the DTV transmission facilities may make it impossible for a licensee

to meet the DTV construction schedule.9 To the extent that

state and local ordinances make it impossible for broadcasters to meet

the construction schedule and provide DTV service to the public,

important Congressional and FCC objectives regarding prompt

availability of this service to the public and prompt recovery of

spectrum would be frustrated. At the same time, the Commission is

sensitive to the rights of states and localities to protect the

legitimate interests of their citizens and does not seek to

unnecessarily infringe these rights. The Commission recognizes its

obligation to ``reach a fair accommodation between federal and

nonfederal interests.'' 10 Thus, it is incumbent upon the

Commission not to ``unduly interfere with the legitimate affairs of

local governments including certain health, safety and aesthetic

regulations, when they do not frustrate federal objectives.''

11 Historically the Commission has sought to avoid becoming

unnecessarily involved in local zoning disputes regarding tower

placement, however, where such ordinances have inhibited the

implementation of Congressional or FCC objectives, the Commission has

adopted rules preempting local zoning ordinances.12

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\9\ Fifth Report and Order, supra at para. 91.

\10\ Arecibo Radio Corporation, 101 FCC 2d 545, 550 (1985); see

City of New York v. FCC, 486 U.S. 57, 64 (1988) (Commission exercise

of preemption power must represent reasonable accommodation of

conflicting policies.)

\11\ Notice of Proposed Rule Making, In the Matter of Preemption

of Local Zoning Regulations of Receive-Only Satellite Earth

Stations, CC Docket No. 85-89, 50 FR 13986 (April 9, 1985). See also

Preemption of Local Zoning Regulations of Satellite Earth Stations,

IB Docket No. 95-59, 61 FR 10896 (March 18, 1996); Preemption of

Local Zoning Regulations of Receive-Only Satellite Earth Stations,

50 FR 13986, 13989; Amendment of Part 73 of the Commission's Rules

to More Effectively Resolve Broadcast Blanketing Interference, 11

FCC Rcd 4750, 4754 (1996) (localities best situated to resolve local

land use and related aesthetic questions).

\12\ E.g., Preemption of Local Zoning or Other Regulation of

Receive-Only Satellite Earth Stations, CC Docket No. 85-87, 59 RR 2d

1073 (released February 5, 1986); Federal Preemption of State and

Local Regulations Pertaining to Amateur Radio Facilities, PRB-1, 50

FR 38813 (September 25, 1985).

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9. The Petitioners' proposed rule is not limited to DTV-related

construction, including the involuntary relocation of FM antennas now

collocated on television towers. It is less clear to the Commission

that preemption will be needed where broadcasters do not face

exigencies such as DTV construction deadlines. The Commission seeks

comment as to whether a preemption rule should cover the construction

of all broadcast facilities or be limited to DTV construction and to FM

radio station transmission facility relocations resulting from such

construction.13

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\13\ But see paragraph 21, infra.

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IV. Request for Comments

10. The Commission generally invites comment on the Petitioners'

proposals for the preemption of state and local law regulations on the

siting of broadcast transmission facilities and on the Petitioners'

proposed rule. Alternatively, the Commission seeks comment on whether

any rule adopted should focus on actions state and local governments

would be preempted from taking or what state or local authority would

be preempted by failure to act within a specified time

period.14

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\14\ See, e.g., 47 CFR Sec. 25.104.

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11. The Commission seeks a detailed record of the nature and scope

of

[[Page 46243]]

broadcast tower siting issues, including delays and related matters

encountered by broadcasters, tower owners and local government

officials. The Commission is particularly interested in receiving

information about experiences related to time constraints, delays or

other obstacles encountered by broadcasters and tower owners in the top

30 markets.15 The Commission is also interested in the

extent to which commenters believe such difficulties are representative

of difficulties that will be faced in the context of DTV build-out and

whether existing laws, ordinances and procedures are likely to impede

adherence to our accelerated DTV build-out schedule. The Commission

also seeks comment on whether it should preempt state and local

restrictions regarding RF emissions from broadcast transmission

facilities or local regulation intended for aesthetic purposes?

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\15\ The top thirty television markets, as ranked by Nielsen

Media Research as of April 3, 1997 are: New York, Los Angeles,

Chicago, Philadelphia, San Francisco, Boston, Washington, D.C.,

Dallas-Fort Worth, Detroit, Atlanta, Houston, Seattle-Tacoma,

Cleveland, Minneapolis-St. Paul, Tampa-St. Petersburg, Miami,

Phoenix, Denver, Pittsburgh, Sacramento-Stockton, St. Louis,

Orlando-Daytona Beach, Baltimore, Portland, OR, Indianapolis, San

Diego, Hartford-New Haven, Charlotte, Raleigh-Durham, and

Cincinnati.

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12. The Commission also seeks comment on the procedural framework

proposed by Petitioners. Specifically, should the Commission preempt

state and local government authority where they fail to act within

certain time periods? The Commission asks states and localities to

comment on their current procedures, their need to use these

procedures, the possibility of using expedited procedures to meet the

DTV construction schedule, and the nature of such expedited procedures.

Is there an appropriate role for the Commission in resolving disputes

between localities and licensees with respect to tower siting issues?

List of Subjects in 47 CFR Part 1

Television broadcasting, Radio broadcasting.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97-23190 Filed 8-29-97; 8:45 am]

BILLING CODE 6712-01-P