September 2, 1997

Mr. Mark G. Sellers

City Attorney

City of Thousand Oaks

2100 Thousand Oaks Boulevard

Thousand Oaks, California 91362-2903

RE: Request for Written Response on City's Authority to Prohibit Transmission Facilities in Certain Zones.

Dear Mr. Sellers:

I am writing in response to your correspondence dated July 22, 1997, requesting the Commission's input on several issues concerning the location and installation of transmission facilities for "wireless telecommunications services" in the city of Thousand Oaks, California ("the City"). You note that the City is currently drafting an ordinance which would regulate such activities. While you have not provided us with a draft of the ordinance, I will attempt to respond to the questions raised in your letter. Please note that the views stated herein are strictly advisory and reflect the views of the staff of the Commercial Wireless Division only. This letter does not constitute a formal ruling by the Wireless Telecommunications Bureau or the Commission.

At the outset, I note that you do not define the term "wireless telecommunications services." Therefore, please note that this opinion only relates to the construction, placement or modification of "personal wireless service facilities" as that term is defined in Section 332(c)(7)(C)(ii) of the Communications Act of 1934, as amended ("the Act").

You inquire as to whether the City may prohibit the location of transmission facilities in all "residential" or "open spaces" which comprise 70% to 80% of the City. Facilities would be allowed only in "commercial" or "industrial" zones where you currently have a height restriction of 35 feet. You request an opinion as to whether such regulations would be consistent with the Act. You also request an opinion as to whether the City's regulations (relating to "location and height of facilities") must allow carriers to provide coverage over the entire City.

Section 332(c)(7)(A) of the Communications Act of 1934, as amended, preserves State and local governments' authority over decisions regarding the placement, construction, and modification of personal wireless service facilities. At the same time, Section 332(c)(7)(B) contains certain limitations to that authority. Section 332(c)(7)(B)(i)(II) states that the regulation of personal wireless service facilities shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

Whether your proposed location and height restrictions would "prohibit or have the effect of prohibiting personal wireless services" is a question that would have to be reviewed pursuant to Section 332(c)(7)(B)(i)(II) on a case-by-case basis after full examination of the specific facts and circumstances. We note that under the statute, such review is reserved to the courts rather than the FCC. We believe it could plausibly be argued, however, that the existing height restriction of 35 feet, combined with the proposed location restriction that would prohibit siting on 70% - 80% of the available land area in the City is sufficiently restrictive to be viewed as effectively prohibiting the provision of personal wireless services.

You also inquire as to whether carriers are required to provide a certain level of coverage to your City and, if so, who determines whether the level of local coverage is sufficient? The Commission's rules for licensees in the personal wireless services differ from service to service but, generally speaking, so long as a licensee provides significant coverage throughout its licensed area, the rules do not require that a level of coverage be met with respect to specific cities or towns. As to whether your regulations must permit coverage over the entire City, as noted above, Section 332(c)(7)(B)(i)(II) does not permit state and local governments to effectively prohibit the provision of service. While the term "effectively prohibit" is not defined, a plain reading could suggest that state and local governments are not permitted to drastically limit the availability of service within significant portions of their jurisdictions. Thus, any regulation or action that does not permit reasonable means to offer a desired quality of service to substantial areas of the City is arguably prohibited. Again, however, application of Section 332(c)(7)(B)(i)(II) to specific circumstances is reserved for the courts to decide.

I trust that this response answers all of your questions. Should you have any additional questions concerning these matters, please feel free to contact the Wireless Telecommunications Bureau.

Very truly yours,



Shaun A. Maher

Attorney-Advisor

Commercial Wireless Division

Wireless Telecommunications Bureau