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

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.

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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

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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

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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

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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

[email protected] and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--

17th Street, N.W., Washington, DC 20503 or via the Internet at

[email protected]. 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: [email protected], 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