Cellular Telecommunications Industry Association
1250 Connecticut Avenue, N.W. Suite 200
Washington, D.C. 20036
202-785-0081 Telephone
202-331-8112 Fax
Thomas E. Wheeler
President / CEO

January 3, 1997

Michele C. Farquhar, Esq.
Chief
Wireless Telecommunications Bureau
Federal Communications Commission
2025 M Street, NW
Washington, DC 20554

Re: Request for Clarification of the Cellular
Telecommunications Industry Association

Dear Ms. Farquhar:

In recent months, a large number of CTIA's members have expressed concern regarding the issue of State and local government regulation of the services and facilities of wireless telecommunications carriers. The number of parties affected by these regulations, as well as the importance of the issues presented, moves CTIA to request from the Bureau clarification of the law in this area.

Specifically, for illustrative purposes, CTIA herein presents the Bureau with general descriptions of a number of ordinances and disputes made known to CTIA by its members. CTIA requests the Bureau's interpretation of the rules and statutory provisions governing the relevant issues as well as the Bureau's opinion as to whether the State or local government has exceeded its legal authority. CTIA believes that Bureau clarification will assist courts exercising primary jurisdiction to assess the Wireless Telecommunications Bureau's views on these matters. More directly, the Bureau's clarification and advice will provide wireless carriers and State and local governments needed guidance for resolving similar issues in the future.

The scenarios detailed below represent three of the most frequently disputed issues between wireless carriers and State and local governments: (1) State and local attempts to regulate radio frequency emissions; (2) the imposition of excessive fees and/or the attachment of onerous regulatory conditions for antenna siting and the provision of wireless services by State and local governments which operate as barriers to entry for wireless carriers; and, (3) outright moratoria on authorizations for land use and antenna siting of wireless telecommunications facilities.

Michele C. Farquhar, Esq.
January 3, 1997
Page 2

One example involves a law recently enacted in a New England state establishing rules for wireless facility siting on the State's property. A provision of the law requires the State's Public Service Commissioner to issue a report on health risks posed by nonionizing electromagnetic radiation emitted from wireless facilities. In addition, the Commissioner is directed to recommend regulations, based upon the study's findings, for facilities and equipment that emit such nonionizing electromagnetic radiation. CTIA believes that State regulation of radio frequency ("RF") emissions is prohibited by Section 332(c)(7)(B)(iv),⁽¹⁾ consistent with the Commission's recent preemption under the Telecommunications Act of State and local regulation of personal wireless service facilities on the basis of RF environmental effects.⁽²⁾ The State's study and any regulations adopted pursuant to that study are an infringement upon the Commission's statutory authority to regulate RF emissions.

A second scenario is demonstrated by a Pacific Northwest county's denial of a wireless carrier's application for conditional use permits to construct a wireless telecommunications infrastructure in its federally-licensed territory. At a public hearing, a significant portion of the testimony and evidence submitted into the record by the County Board of Adjustment pertained to environmental issues posed by wireless facilities. After being advised that it was not permitted to base its decision on environmental issues posed by radio frequency emissions, the Board of Adjustment continued to hear testimony and admit evidence concerning the same. Further, although the Board's decision omitted references to environmental concerns surrounding RF emissions, it did refer to community opposition which, as evidenced by record testimony, centered largely around environmental concerns of RF emissions. The Board's decision contained no reference to factual support in the record for the stated bases for its denial. Further, the Board's decision prohibited the provision of personal wireless services to the county. CTIA believes the Board's actions violate Section 332(c)(3)(A)⁽³⁾ and Section 332(c)(7)(B)(iv) of the Communications Act.

Michele C. Farquhar, Esq.
January 3, 1997
Page 3

This case illustrates that concerns surrounding FCC-authorized RF emissions are the basis, often unexpressed, for State and local discrimination against the construction or modification of wireless telecommunications facilities. CTIA believes that the Commission should exercise its statutory authority and protect the ability of licensees to avail themselves of the privileges under their licenses by emphasizing the impropriety of State and local governments to consider RF emissions when regulating wireless access to rights-of-way.

With regard to unreasonable fees and assessments, a Florida city has proposed an ordinance which imposes unreasonable charges upon construction of wireless facilities. Under the ordinance, a permit for the construction of a 200-foot freestanding monopole is $40,000 per year. Subsequent installers of antennae on the pole must pay 25% of the value of the lease agreement on an annual basis. Further, charges can be assessed even if antennae or towers and poles merely are placed on an existing utility pole. The requisite expenditures for wireless facility construction in this city impede financially viable provision of wireless service.

CTIA addressed the issue of excessive fees and taxes in its Petition for Rulemaking filed with the Commission in September and therein illustrates the need, and provides the legal basis of authority, for Commission action.⁽⁴⁾ As CTIA detailed in its Petition, the Commission has the authority and the obligation to preempt discriminatory and/or excessive State and local taxes and assessments. This means that State and local excise, usage, property, utility and other taxes and assessments which (1) favor one telecommunications service or provider at the expense of another or (2) impede or preclude the offering of any telecommunications service by imposing excessive or unreasonable costs, are prohibited. The Commission's preemptive authority has existed since 1934, and remains today. The Telecommunications Act of 1996 and the 1993 amendments to Section 332 of the Communications Act, in radically changing the entire telecommunications landscape, inevitably alter what constitutes "discriminatory" and "excessive" conduct barred by the Communications Act.

In addition, as CTIA explained in its Petition, any taxes or assessments imposed upon wireless carriers or their services must be viewed cumulatively as well as separately. That is, to the extent that various State and local excise, usage, property, utility taxes, or other fees and assessments, individually or taken together, burden telecommunications providers and/or service entry, they should be prohibited. To the extent that one State or locality's taxing practices and regulatory fees unfairly impact the buildout of a nationwide telecommunications infrastructure, they should be prohibited as well.

Michele C. Farquhar, Esq.
January 3, 1997
Page 4

An example of onerous regulatory conditions on entry is found in an East Coast city. As a condition of receiving a franchise agreement or license in this city, a carrier must grant the city all the services on its six page wish-list. For example, a carrier must provide to the city its authorized services at the lowest rate offered to any of the carrier's customers, less 20%.⁽⁵⁾ Charges for these services may be offset against the franchise fee which equals 5% of the carrier's gross income. If charges exceed the current year's franchise fees, they may be offset against the franchise fees of future years. The carrier must also provide dark fiber and lateral connections to city government buildings at no cost to the city. It is unclear whether such conditions will be imposed on wireless carriers who otherwise would lack the need for the installation of extensive fiber optic facilities. Such actions raise serious questions under Section 332(c)(3) as well as Section 253(a).⁽⁶⁾

Finally, a West Coast city adopted a year-long moratorium on the acceptance, processing or issuance of any permit for the siting of antennae that facilitate transmission or operation of wireless technology facilities until the city's planning commission can conduct a study and report on the issue. Particularly egregious is the ordinance's imposition of civil and criminal penalties (including imprisonment) for violation of the ordinance. Because the ordinance prohibits new entry into the wireless telecommunications market in this area, newly-licensed wireless providers are precluded from making use of their federal licenses.⁽⁷⁾ The moratorium not only restricts the growth of competition, but it also results in an absence of new services for potential customers in the area, discriminates against CMRS providers, precludes the intensive and efficient use of the spectrum, and restrains the ability of the licensees to generate revenue. CTIA believes this ordinance violates the Communications Act.⁽⁸⁾

Michele C. Farquhar, Esq.
January 3, 1997
Page 5

CTIA believes the above-mentioned scenarios, representative of many similar occurrences across the nation, constitute infringements upon Commission authority which threaten the continued development of wireless telecommunications systems. To prevent further disregard for the stated goals of Congress and the Commission in this area, CTIA herein requests clarification of the bounds of State and local authority to regulate the services and facilities of wireless telecommunications carriers.

Respectfully submitted,

Thomas E. Wheeler

1. 47 U.S.C. 332(c)(7)(B)(iv) 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."

2. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, Report and Order, FCC 96-236 at 166 (released Aug. 1, 1996)(amending the Commission's rules to incorporate the preemption provisions of Section 704 of the Telecommunications Act).

3. 47 U.S.C. 332(c)(3)(A)(stating that "no State or local government shall have any authority to regulate the entry of or the rates charged by commercial mobile service or any private mobile service").

4. Amendment of the Commission's Rules To Preempt State and Local Imposition Of Discriminatory And/Or Excessive Taxes And Assessments, RM --, Petition for Rule Making of the Cellular Telecommunications Industry Association (filed Sept. 26, 1996).

5. The discount requirement may require some providers to offer their services to the City at a loss which likely constitutes an unreasonable and confiscatory rate.

6. 47 U.S.C. 253(a) reads: "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."

7. This would seem to violate Section 332(c)(7)(B)(i)(II) which forbids any regulation by any State or local government that "prohibit[s] or [has] the effect of prohibiting the provision of personal wireless services."

8. CTIA recently filed with the Commission a Petition for Declaratory Ruling addressing moratoria regulation imposed by State and local governments on siting of telecommunications facilities. See Federal Preemption of Moratoria Regulation Imposed by State and Local Governments On Siting of Telecommunications Facilities, DA 96-2140, Petition of Declaratory Ruling of the Cellular Telecommunications Industry Association (filed Dec. 16, 1996). The Commission has invited public comment on the Petition. See Commission Seeks Comment on Petition for Declaratory Ruling of the Cellular Telecommunications Industry Association, Public Notice (released Dec. 18, 1996).