Preemption of State or Local Statutes; Suggested Guidelines for Petitions for Ruling Under Section 253 of the Communications Act

FEDERAL COMMUNICATIONS COMMISSION

[FCC 98-295]

Preemption of State or Local Statutes; Suggested Guidelines for

Petitions for Ruling Under Section 253 of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Commission has released a Public Notice which suggests

various procedural guidelines for filing petitions for Commission

action pursuant to section 253 of the Communications Act. Section 253

requires the Commission, subject to enumerated exceptions, to preempt

the enforcement of any state or local statute, regulation, or legal

requirement that prohibits or has the effect of prohibiting the ability

of any entity to provide any interstate or intrastate

telecommunications service. These suggested guidelines are designed to

assist petitioners and commenters in preparing their submissions to the

agency.

FOR FURTHER INFORMATION CONTACT: Jordan Goldstein, Common Carrier

Bureau, (202) 418-1500.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

OMB Control Number: 3060-0859.

Expiration Date: 5/31/99.

Title: Suggested Guidelines for Petitions for Ruling under Section

253 of the Communications Act.

Respondents: Business or other for-profit; federal government; and

state, local or tribal government.

Public reporting burden for the collection of information is

estimated as follows:

----------------------------------------------------------------------------------------------------------------

No. of Annual hour

Information collection respondents burden per Total annual

(approx.) response burden

----------------------------------------------------------------------------------------------------------------

Filing of petitions for preemption.............................. 20 125 2,500

Submission of written comments on petitions..................... 60 63 3,780

----------------------------------------------------------------------------------------------------------------

Total Annual Burden: 6,280.

Frequency of Response: On occasion.

Estimated Costs per Respondent: $0.

Needs and Uses: The Commission released a Public Notice (FCC 98-

295) which suggests various procedural guidelines relating to the

Commission's processing of petitions for preemption pursuant to section

253 of the Communications Act of 1934, as amended. The Commission will

use the information to discharge its statutory mandate relating to the

preemption of state or local statutes or other state or local legal

requirements.

[[Page 66807]]

Synopsis of Public Notice

This Public Notice suggests procedural guidelines for filing

petitions for Commission action pursuant to section 253 of the

Communications Act of 1934, as amended 47 U.S.C. 253 (Act). These

suggested guidelines are designed to assist petitioners and commenters

in preparing their submissions to the agency. Other than the mechanical

filing requirements described below in Section D, however, these

guidelines are not intended to limit the content or form of information

that petitioners or commenters submit.

A. Background

Section 253 requires the Commission, subject to enumerated

exceptions, to preempt the enforcement of any state or local statute,

regulation, or legal requirement that prohibits or has the effect of

prohibiting the ability of any entity to provide any interstate or

intrastate telecommunications service. To date, the Commission has

received over 25 petitions seeking preemption under section 253.

These petitions involve not only competition issues but also the

relationships among the federal, state and local levels of government.

In order to ensure that, on the one hand, competition is not unduly

delayed by requirements that retard vigorous market entry, while, on

the other hand, the vital role of state and local authorities in

advancing the interests of their citizens is acknowledged, the

Commission must undertake full and expeditious examination of the

issues raised in each petition.

Section 253 petitions necessarily involve state or local statutes,

regulations, ordinances, or other legal requirements that likely are

unfamiliar to the Commission. In order to render a timely and informed

decision, petitioners and commenters should submit relevant information

sufficient to describe the legal regime involved in the controversy and

to establish the factual basis necessary for decision. Factual

assertions should be supported by credible evidence, including

affidavits, and, where appropriate, studies or other descriptions of

the economic effects of the legal requirement that is the subject of

the petition.

In preparing their submissions, parties should address as

appropriate all parts of section 253. In particular, parties should

first describe whether the challenged requirement falls within the

proscription of section 253(a); if it does, parties should describe

whether the requirement nevertheless is permissible under other

sections of the statute, specifically sections 253(b) and (c). Lastly,

parties should submit information on whether and how the Commission

could tailor a decision to preempt the enforcement of an offending

legal requirement only ``to the extent necessary to correct such

violation or inconsistency'' as required by section 253(d).

B. Content of Petitions and Replies

The Commission realizes that it cannot anticipate every type of

section 253 preemption request that may be filed. However, we identify

below specific issues that we suggest petitioners should include when

addressing whether a legal requirement violates the statute. While not

all questions will be relevant to all petitions, the Commission

suggests that section 253 petitions incorporate answers to the

following questions, as applicable, in order to establish a complete

factual record relating to section 253(a):

(1) What is the statute, regulation, ordinance, or legal

requirement that is being challenged? Please provide a copy. Identify

and describe any other pending court or state regulatory actions

relating to the enforceability of the challenged statute, regulation,

or legal requirement.

(2) What specific telecommunications service or services is the

petitioner prohibited or effectively prohibited from providing?

(a) What other specific entities, if any, are prohibited or

effectively prohibited from providing the service?

(b) What group or groups of actual or potential customers are being

denied access to the service or services?

(3) What are the factual circumstances that cause the petitioner to

be denied the ability to offer the relevant telecommunications service

or services?

(a) Does the statute, regulation, ordinance, or legal requirement

categorically ban provision of a telecommunications service?

(b) Does the statute, regulation, ordinance, or legal requirement

have the effect of prohibiting the ability of an entity to provide a

telecommunications service? Petitioner should describe with

particularity how the challenged statute, regulation, ordinance, or

legal requirement has such an effect. For example, if the petitioner

alleges that a statute, regulation, ordinance, or legal requirement has

the effect of prohibiting the petitioner's ability to provide a

telecommunications service because the challenged statute, regulation,

ordinance, or legal requirement raises petitioner's costs, the petition

should explain: (1) how the statute, regulation, ordinance, or other

legal requirement prohibits or has the effect of prohibiting the

ability of any entity to provide any interstate or intrastate

telecommunications service, (2) whether the statute does so in a

discriminatory manner; (3) whether price levels in the market preclude

recovery of any such additional costs; and (4) any other factors that

demonstrate that the challenged statute, regulation, ordinance, or

legal requirement has the alleged effect.

(4) Have other governmental entities adopted similar requirements?

If so, are there conflicting requirements imposed on service providers

(either in law or practice)? Are there cumulative adverse effects of

requirements flowing from multiple local regulatory regimes? If so, the

petitioner should describe with particularity how the cumulative

adverse effects prohibit the ability of an entity to provide a

telecommunications service.

(5) Assuming the Commission determines that modification of the

challenged statute, regulation, ordinance, or legal requirement is

required, what is the least intrusive action necessary to correct the

alleged violation of section 253?

Responding parties, in addition to addressing issues raised in the

petition, may also rely on section 253 (b) or (c), which identify

certain State and local government actions as permissible even though

they may be the basis for the alleged violation of section 253(a). In

order to help the Commission determine whether preemption of the

challenged statute, regulation, ordinance, or legal requirement is

within the scope of Commission jurisdiction, parties commenting on the

applicability of sections 253 (b) or (c), and especially parties

seeking to invoke these sections, should include answers to the

following questions in their filings:

(1) If the requirement is imposed by a local government entity,

what is the source of its authority (e.g., state constitution, statute,

delegation of state power)?

(2) Is the challenged statute, regulation, ordinance, or legal

requirement:

(a) necessary to preserve and advance universal service consistent

with section 254 of the Act and does it do so in a competitively

neutral and nondiscriminatory manner;

(b) necessary to protect the public safety and welfare and does it

do so in a competitively neutral and nondiscriminatory manner;

(c) necessary to ensure the continued quality of telecommunications

services and does it do so in a competitively

[[Page 66808]]

neutral and nondiscriminatory manner; and

(d) necessary to safeguard the rights of consumers and does it do

so in a competitively neutral and nondiscriminatory manner? Please

explain.

(3) Does the challenged statute, regulation, ordinance, or legal

requirement pertain to the management of, or compensation for access

to, rights-of-way? If so, please explain the nature of any relationship

to rights-of-way management or compensation. If compensation is

involved, is it fair and reasonable and required on a competitively

neutral and nondiscriminatory basis?

Parties asserting that a statute, regulation, ordinance, or legal

requirement is necessary to achieve the objective at issue should

describe and support this claim with particularity, including, but not

limited to, a description of the objective sought to be achieved and of

the inadequacies of less competitively restrictive means of achieving

the objective.

Parties asserting that a statute, regulation, ordinance, or legal

requirement is not necessary to achieve the objective at issue should

describe and support this claim with particularity, including, but not

limited to, a description of less competitively restrictive means of

achieving the objective.

Parties asserting that a statute, regulation, ordinance, or legal

requirement is discriminatory or not competitively neutral should

describe and support such claim with particularity.

Because section 253(d) requires notice and an opportunity for

public comment before Commission action under section 253, commenters

wishing to challenge additional provisions, even though related to

those identified in the petition, should initiate their own petitions

to address those provisions they believe appropriate.

C. Time Frame for Proceedings

Once a petition has been filed (often styled as a request for

declaratory ruling), the relevant Bureau will issue a public notice

establishing the specific due dates for the various filings set forth

below. We anticipate the affected government entity and interested

third parties generally will have approximately 30 days to respond to

the petition. If the matter presented in the petition is of an urgent

nature, the Bureau may, where it determines good cause exists, require

less than 30 days for responses. To file comments (or any other filing

set forth below) in a section 253 proceeding, commenters should follow

the applicable procedures outlined below.

All participants in the proceeding--the petitioner, interested

third parties, the relevant State or local government entity--may file

a reply to any comment made by any other participant. Such replies

generally will be due approximately 15 days after comments are due. The

specific due date for replies will be set forth in the Initial Public

Notice; the time period for replies may be less than 15 days if the

relevant Bureau has determined that expedited review is appropriate.

Reply comments may not raise new arguments that are not directly

responsive to arguments other participants have raised, nor may the

replies be repetitive of arguments made by that party in the petition

or initial comments.

D. Filing Requirements For Petitions, Responses and Comments

Petitioners should file an original and not less than six copies of

each section 253 request. The name of the petitioner, the date the

petition is filed, and the State and city (if applicable) to which it

relates should appear in the upper right hand corner of each page of

the petition. We encourage petitioners to also submit requests on a 3.5

inch computer diskette formatted in WordPerfect 5.1. All filings

submitted on diskette will be posted on the internet for public

inspection at http://www.fcc.gov.

If the petitioner wants each Commissioner to receive a copy of the

section 253 request, the petitioner should file an original plus eleven

copies. The original, all copies, and any diskette should be sent to

the Office of the Secretary, Federal Communications Commission,

Washington, DC 20554. The petitions will be available for public

inspection during regular business hours in the reference room of the

bureau to which the petition has been assigned, Washington, DC 20554.

The applicant should also submit a copy of the request simultaneously

to the Commission's copy contractor, International Transcription

Services, Inc., 1231 20th Street, NW, Washington, DC 20036. In

addition, the petitioner should simultaneously provide a copy of the

petition to each state or local government entity to which the petition

applies and reference such service in the petition. If the petition

involves a local statute, regulation, ordinance, or legal requirement,

the petitioner should also serve the appropriate state entity and

reflect this service in the petition. Thereafter, each party, including

the petitioner and each respondent state or local government entity,

should serve all other parties with a copy of its pleadings and any

filing made pursuant to the Commissions ex parte rules.

E. Ex Parte Rules

Because of the broad policy issues involved, and because these

proceedings are generally declaratory ruling proceedings, section 253

petition proceedings initially will be considered ``permit-but-

disclose'' proceedings. Accordingly, ex parte presentations will be

permitted (unless the Commission designates a particular proceeding

``restricted''), provided they are disclosed in conformance with

Commission ex parte rules. In addition, parties should notify all

parties of any ex parte communications.

The Commission expects to be kept informed, through ex parte

presentations, of any discussions between the petitioner and the

relevant state or local entity regarding resolution of the issues

raised in the petition.

Notwithstanding the above, the Commission may, by subsequent public

notice, prohibit all communication with Commission personnel regarding

the petition during a defined period preceding the anticipated release

date of the Commission's order regarding the petition.

FCC Notice to Individuals Required by the Paperwork Reduction Act

Pursuant to section 253 of the Communications Act of 1934, the

Commission, subject to enumerated exceptions, must preempt the

enforcement of any state or local statute, regulation, or legal

requirement that prohibits or has the effect of prohibiting the ability

of any entity to provide any interstate or intrastate

telecommunications service. Parties may file petitions seeking

preemption under section 253. The Commission must provide an

opportunity for public comment. All of the information collected would

be used to determine whether the state or local government has imposed

a legal requirement that violates section 253 of the Act. Obligation to

respond to this collection of information is not mandatory.

The public reporting for this collection of information is

estimated to average 78.5 hours per response, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the required data, and completing and reviewing the

collection of information. If you have any comments on this burden

estimate, or how we can improve the collection, please write to the

Federal Communications Commission, AMD-PERM, Paperwork

[[Page 66809]]

Reduction Project (3060-0859), Washington, DC 20554. We will also

accept your comments on the burden estimate via the Internet if you

send them to [email protected] Please do not send petitions to this

address.

Remember--You are not required to respond to a collection of

information sponsored by the Federal government, and the government may

not conduct or sponsor this collection, unless it displays a currently

valid OMB control number or if we fail to provide you with this notice.

This collection has been assigned an OMB control number of 3060-0859.

The foregoing notice is required by the Paperwork Reduction Act of

1995, Public Law 104-13, October 1, 1995, 44 U.S.C. Section 3507.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98-32158 Filed 12-2-98; 8:45 am]

BILLING CODE 6712-01-p