October 17, 1997
Mr. Mike Loucy
Sprint PCS
4 British American Boulevard
Latham, NY 12110
Dear Mr. Loucy:
You have inquired as to whether a local government may, consistent with the Communications
Act, require a provider of personal wireless services to test its facilities for compliance with the
Commission's radio frequency (RF) emissions guidelines. Section 332(c)(7)(B)(iv) of the
Communications Act, 47 U.S.C. 332(c)(7)(B)(iv), provides that a local government "may not
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 the Commission's
guidelines.
In a recent Notice of Proposed Rulemaking (NPRM), the Commission recognized that local
governments have a reasonable interest in assuring themselves and their constituents that
facilities will comply with the guidelines.(1) At the same time, the Commission expressed
concern that unnecessarily burdensome verification requirements may unduly delay the siting of
personal wireless service facilities contrary to the intent of Section 332(c)(7). The Commission
therefore initiated a process toward formulating guidelines as to what sort of information a state
or local authority may require.
The Commission's RF emissions guidelines limit the total amount of emissions to which both the
general population and workers or others who can control their exposure may be exposed. Under
the guidelines, the operators of some personal wireless service facilities must submit information
for evaluation by the Commission showing that the facility will not expose anyone to emissions
that exceed the guidelines. If the facility will not comply with the guidelines, the operator must
submit an Environmental Assessment and cannot construct or operate the facility until the
Assessment is approved. Other facilities, however, because of the low power at which they
operate or their height above the ground, are considered so unlikely to cause exposure that
exceeds the guidelines that they are "categorically excluded" from routine evaluation. These
facilities still must comply with the substantive guidelines, but unless the Commission
specifically orders otherwise an operator ordinarily may assume compliance.
In the NPRM, the Commission tentatively concluded that for facilities which are not
categorically excluded, a state or local government should be permitted to request only copies of
any and all documents related to RF emissions that were submitted to the Commission as part of
the licensing process. The Commission requested comment on this tentative conclusion. For
facilities which are categorically excluded, the Commission tentatively concluded that it should
adopt one of two approaches, and it requested comment on both. Under the first approach, a
state or local government could request only that the personal wireless service provider certify in
writing that its proposed facility will comply with the guidelines. Under the second approach, a
government could require a more detailed showing. However, the Commission believed this
approach would be workable only if it adopted uniform standards for such a demonstration.
In the interim, until permanent guidelines are adopted, the Commission issued a non-binding
policy statement in order to provide guidance as to the standards it would likely use in evaluating
any petition that may come before it alleging a violation of Section 332(c)(7)(B)(iv). The
Commission stated that it would be less likely to find that a local government had violated the
Act if, in the case of a facility which is not categorically excluded, the local government
requested only copies of documents that were submitted to the Commission. For categorically
excluded facilities, the Commission would be less likely to find a violation if the local
government simply requested a written statement signed by the personal wireless service
provider or its representative containing: (1) a statement that the proposed or existing facility
does or will comply with the Commission's guidelines; (2) a statement or explanation of how
compliance was determined; (3) an explanation as to what, if any, restrictions on access will be
maintained to ensure compliance; and (4) a statement as to whether other significant transmitting
sources are located at or near the transmitting site and, if so, whether their emissions were
considered in determining compliance.
For further information, I urge you to consult the text of the NPRM. The NPRM may be downloaded from the Commission's World Wide Web site at http://www.fcc.gov/wtb/
siting.html. Hard copies are available for a fee from the Commission's copy contractor,
International Transcription Service, 1231 20th Street N.W., Washington, DC 20036.
I hope this information addresses your inquiry. If you have further questions or concerns, please
contact Jeffrey Steinberg or Shaun Maher of my staff at (202) 418-0620.
Sincerely,
David L. Furth
Chief, Commercial Wireless Division
Wireless Telecommunications Bureau
1. See 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, WT Docket No. 97-192, Second Memorandum Opinion and Order and Notice of Proposed Rulemaking, FCC 97-303, paras. 142-148 (released Aug. 25, 1997).