Federal Communications Commission
Washington, D.C. 20554

January 13, 1997

Mr. Thomas E. Wheeler
President and CEO
Cellular Telecommunications Industry Association
1250 Connecticut Avenue, N.W.
Suite 200
Washington, DC 20036

Dear Mr. Wheeler:

This is in response to your letter of January 3, 1997, requesting the Wireless Telecommunications Bureau (Bureau) to interpret Federal statutory provisions relevant to State and local regulation of wireless telecommunications facilities and services. In your letter, you state that many members of the Cellular Telecommunications Industry Association (CTIA) have expressed concern over a variety of issues raised by State and local regulation. You further state that the Bureau's clarification and advice will provide both wireless carriers and State and local governments with valuable guidance in addressing these issues, as well as assist the courts in exercising their jurisdiction over specific cases. You therefore request the Bureau's opinion as to whether the actions of State and local governments in several factual situations that you describe are consistent with relevant Federal law.

We strongly believe the public interest is served to the extent that wireless telecommunications licensees are able to build out their systems, consistent with Federal law and the recognition of legitimate land use concerns, with a minimum of misunderstanding and delay. In order to promote this goal, and to assist State and local governments in pursuing sound policies that conform with Federal law, we are pleased to provide the advice and opinions that you request. Please keep in mind, however, that the conclusions stated in this letter constitute the views of the Wireless Telecommunications Bureau. These conclusions do not necessarily represent the opinions of the Commission or any individual Commissioner, and they do not bind the Commission in any way. Furthermore, legal jurisdiction to determine whether any State or local government action violates Section 332(c)(7) of the Communications Act, other than actions which may constitute unlawful regulation based on the environmental effects of radio frequency emissions, is reserved by statute to the courts.⁽¹⁾ Although the Bureau's expert opinion may assist the courts in interpreting and applying the remaining provisions of Section 332(c)(7), neither the Bureau's nor the Commission's interpretation of these provisions can be legally binding.

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Finally, the interpretations expressed herein are based solely on the facts presented in your letter. We have made no effort independently to ascertain the accuracy and completeness of these representations, nor to obtain comment from other interested parties. Therefore, this letter should be read as a series of interpretations based on illustrative facts, not as an attempt to determine, on a binding or non-binding basis, the legal status of any particular State's or community's regulations. To the extent that we believe additional facts would be relevant to the legal status of any regulation, I have attempted to indicate that fact in this letter.

1. You assert that a New England State has enacted a law requiring the State's Public Service Commissioner to issue a report on health risks posed by nonionizing electromagnetic radiation emitted from wireless facilities. You further state that the law directs the State Commissioner to recommend regulations, based upon the study's findings, for facilities and equipment that emit such radiation. You question whether the State's study and any regulations adopted pursuant to that study unlawfully infringe upon this Commission's statutory authority to regulate radio frequency (RF) emissions.

Section 332(c)(7)(B)(iv) of the Communications Act provides:

No 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.

The Conference Report accompanying the Telecommunications Act of 1996 explains that this provision was intended to preempt State and local regulation based "directly or indirectly" on the environmental effects of RF emissions from personal wireless service facilities that comply with the Commission's rules.⁽²⁾ Although this provision does not prevent a State government or any other entity from studying the effects of RF emissions, it would appear to preempt State regulation of the siting or construction of personal wireless facilities based on the results of that study, provided the facility's emissions comply with the Commission's rules. Therefore, based on the facts as you have presented them, that portion of the statute that directs the State Commissioner to recommend regulations based upon the study's findings would appear to be preempted, unless the regulations are limited to facilities that do not comply with the Commission's rules governing emissions. Furthermore, Section 332(c)(7)

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would appear to forbid a State or local government from denying any application based on the results of the State Commission's study, or from delaying any decision pending the completion of that study, or from basing any decision on the fact that the study has not been completed, except to the extent the decision concerns a facility that does not comply with the Commission's regulations.⁽³⁾

2. You state that a Pacific Northwest county has denied a wireless carrier's application for conditional use permits to construct a wireless telecommunications infrastructure in that county. According to your letter, a significant portion of the testimony and evidence presented at a public hearing of the County Board of Adjustment centered on the environmental effects of RF emissions. Although the Board's decision did not refer to these environmental concerns specifically, it did reference community opposition, which was largely based on these grounds. You further state that the Board's decision did not cite factual support in the record for its reasons for denial. Finally, you assert that the denial of these permits has effectively prohibited the carrier from offering personal wireless services in the county.

Based on the facts that you describe, it appears that the County's action may violate three provisions of Section 332(c)(7). First, Section 332(c)(7)(B)(i)(II) provides that regulation of the placement, construction, and modification of personal wireless service facilities "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." If, as you state, a personal wireless service provider is effectively prohibited from offering service in the county or any portion of the county because of the Board's action, that action would appear to be insupportable under this provision. Second, Section 332(c)(7)(B)(iii) requires that any decision to deny a request to place, construct, or modify personal wireless facilities "shall be in writing and supported by substantial evidence contained in a written record." The Board's failure to cite record evidence in support of its decision, as you assert, appears to violate this requirement.

Finally, these facts raise a serious question whether the Board's decision was impermissibly based on the environmental effects of RF emissions in violation of Section 332(c)(7)(B)(iv). Although the Board's decision did not expressly cite RF emissions as a reason for denying the permits, its reliance on community opposition as a ground for denial suggests, under these circumstances, that the decision may in fact have been based on environmental concerns. As discussed above, Section 332(c)(7)(B)(iv) prevents a State or community from basing its regulation of the placement, construction, or modification of personal wireless service facilities either directly or indirectly on the environmental effects of RF emissions, to the extent that such facilities comply with the Commission's regulations

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concerning such emissions. Therefore, to the extent that the evidence establishes that the Board's decision was in fact based directly or indirectly on such impermissible considerations, and the evidence does not establish non-compliance with the Commission's regulations, the Board's decision would apparently be subject to preemption under Section 332(c)(7)(B)(iv). The Bureau is considering recommending to the Commission a Notice of Proposed Rulemaking that would suggest specific standards and procedures for resolving cases of this sort.

3. You state that a Florida city has proposed an ordinance which would impose recurring annual charges for permits to construct support structures for wireless transmission facilities, as well as to mount antennae on existing structures. For example, you state, under this ordinance a permit for the construction of a 200-foot freestanding monopole would cost $40,000 per year, and a party that subsequently installs an antenna on that pole would be required to pay 25% of the value of its lease agreement on an annual basis. You state that the need to incur these expenditures would impede financially viable provision of wireless service in the city.

The facts that you describe raise questions regarding possible violations of several provisions of the Communications Act. For example, if these fees would have the effect of prohibiting any entity from providing any telecommunications service, the proposed ordinance might constitute a prohibited barrier to entry under Section 253(a). Alternatively, to the extent the proposed ordinance is considered to regulate the placement, construction, or modification of personal wireless service facilities, a similar prohibitory effect on the provision of services could establish a violation of Section 332(c)(7)(B)(ii). The proposed ordinance may also be inconsistent with Congressional intent to promote "the development and rapid deployment of new technologies, products, and services for the benefit of the public . . . without administrative or judicial delays."⁽⁴⁾ Finally, the proposed ordinance might arguably constitute unlawful local entry regulation of commercial mobile radio service (CMRS) providers in violation of Section 332(c)(3).

You further note that this Florida city's proposed ordinance is but one example of a variety of regulations and requirements which you believe impose excessive fees and taxes on wireless service providers. We believe that each regulation of this sort may raise unique factual and legal issues, and therefore that, at least in the short term, it is best to address each case on its own facts. For example, cases involving State and local taxes may raise different issues than cases involving other types of fees. A petition is currently pending before the Commission which seeks to preempt the State of Oregon's assessment of a property tax based in part upon the amount that a personal communications service licensee paid at auction for

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its license.⁽⁵⁾ The Commission's resolution of this petition should provide guidance regarding the preemption of State and local taxes, and perhaps of other fees as well.

4. You state that an East Coast city has imposed extensive conditions upon any carrier seeking a franchise agreement in the city. For example, you state, a carrier must provide to the city its authorized services at 80% of the lowest rate offered to any of its customers. Charges for these services may be offset against the carrier's franchise fee of 5% of its gross income or, if the charges exceed the franchise fee in any given year, against the franchise fees for future years. The carrier must also provide dark fiber and lateral connections to city government buildings at no cost to the city.

We believe these franchise requirements, as you describe them, raise serious questions under Sections 253(a) and 332(c)(3) of the Communications Act. First, to the extent that the city's requirements may have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service, they would appear to be preempted under Section 253(a). In addition, as applied to CMRS providers, the requirement to obtain a local franchise, which can only be obtained by an entity that agrees to satisfy extensive and costly conditions, may well constitute regulation of entry in violation of Section 332(c)(3). Furthermore, the requirement to provide municipal services at a 20% discount from the carrier's lowest charges appears to constitute local regulation of CMRS rates, which Section 332(c)(3) also forbids.⁽⁶⁾

The issues raised by this East Coast city ordinance are in many respects similar to issues involved in US West's pending petition to preempt two ordinances enacted by the City of Roseville, Minnesota.⁽⁷⁾ The Commission's forthcoming resolution of US West's petition will provide more detailed guidance as to the legal status of local franchise requirements applied to CMRS providers under the Communications Act.

5. Finally, you state that a West Coast city has adopted a year-long moratorium on the acceptance, processing or issuance of any permit for the siting or operation of antennae that facilitate the provision of wireless service. This moratorium is intended to last until the city's planning commission can conduct a study and report on the issue of wireless service facilities

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placement. The ordinance enacting the moratorium imposes civil and criminal penalties, including imprisonment, for its violation.

As you are aware, the Commission has requested public comment on CTIA's petition for a declaratory ruling regarding Federal preemption of State and local moratoria on wireless facilities siting.⁽⁸⁾ Given the pendency of that proceeding, we believe it is appropriate for the Bureau to refrain from detailed comment at this time. We note, however, that a one-year moratorium such as the one you describe would appear to raise substantial questions under several provisions of Section 332(c)(7). First, especially to the extent that it prevents carriers even from filing applications for permits, the ordinance may effectively prohibit the provision of personal wireless services in violation of Section 332(c)(7)(B)(i)(II). Second, a moratorium such as the one you describes arguably unreasonably discriminates against new entrants into the personal wireless services market, in violation of Section 332(c)(7)(B)(i)(I). Finally, at least as applied to applications that were pending when the moratorium was enacted, the ordinance may violate the requirement of Section 332(c)(7)(B)(ii) that State and local governments must act on personal wireless service facility siting applications "within a reasonable time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of the request."

I hope that the opinions offered in this letter will provide useful guidance to courts, carriers, and State and local governments alike. Please do not hesitate to contact me again should it appear that additional guidance would be helpful.

Sincerely,

Michele C. Farquhar
Chief, Wireless Telecommunications Bureau

1. See 47 U.S.C. 332(c)(7)(B)(v).

2. S. Rep. No. 104-230, 104th Cong., 2d Sess. at 208 (1996). See also 47 C.F.R. 1.1307(e) (incorporating Section 332(c)(7)(B)(iv) into the Commission's rules). On August 1, 1996, the Commission promulgated revised RF emissions guidelines in accordance with Congressional directive. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, Report and Order, FCC 96-326 (released Aug. 1, 1996), petitions for recon. pending.

3. See also Letter from Michele C. Farquhar to the Honorable Richard Hurt, Mayor, City of Bedford, Texas, dated June 14, 1996 (expressing opinion that moratorium on issuance of building permits pending completion of Commission's rulemaking proceeding on RF emissions violated Section 332(c)(7)(B)(iv)).

4. 47 U.S.C. 309(j)(3)(A).

5. See Western PCS I Corporation Petition for Preemption of the Oregon Department of Revenue Notice of Proposed Assessment, File No. WTB/POL 96-3 (filed July 8, 1996).

6. Section 332(c)(3) permits a State to regulate CMRS rates if, upon the State's petition, the Commission finds that certain conditions are satisfied. To date, the Commission has not made any such finding for any State.

7. See City of Roseville, Minnesota, File No. CWD-96-16, US West Petition for Expedited Declaratory Ruling (filed May 23, 1995). See also TCI Cablevision of Oakland County, Inc., File No. CSR-4790.

8. See Public Notice, Commission Seeks Comment on Petition for Declaratory Ruling of the Cellular Telecommunications Industry Association, DA 96-2140 (released Dec. 18, 1996).