Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Procedures for Reviewing Requests for ) WT Docket No. 97-192

Relief From State and Local Regulations )

Pursuant to Section 332(c)(7)(B)(v) of the )

Communications Act of 1934 )

# REPORT AND ORDER {#report-and-order .unnumbered}

**Adopted: November 13, 2000 Released: November 17, 2000**

By the Commission:

###### Table of Contents {#table-of-contents .unnumbered}

Paragraph Number

REPORT AND ORDER [1](#report-and-order)

I. INTRODUCTION [1](#introduction)

II\. BACKGROUND [2](#background)

III\. discussion [4](#discussion)

A. Procedures for Filing, Serving, and Resolving Petitions
[4](#procedures-for-filing-serving-and-resolving-petitions)

B. Demonstration of RF Compliance [8](#demonstration-of-rf-compliance)

C. Other Issues [9](#other-issues)

IV\. PROCEDURAL MATTERS [10](#procedural-matters)

A. Regulatory Flexibility Act [10](#regulatory-flexibility-act)

B. Paperwork Reduction Act [12](#paperwork-reduction-act)

V. CONCLUSION [12](#conclusion)

VI\. ORDERING CLAUSES [13](#ordering-clauses)

Appendix A -- List of Comments and Replies

Appendix B -- Final Rule

# INTRODUCTION

1.  In this *Report and Order*, we address the issues raised in the
    Commission's Notice of Proposed Rulemaking regarding the
    Commission's review of requests for relief from impermissible State
    and local regulation of personal wireless service facilities based
    on the environmental effects of radiofrequency (RF) emissions.[^1]
    Specifically, we provide that such requests under Section
    332(c)(7)(B)(v) of the Communications Act of 1934, as amended,[^2]
    shall be filed as petitions for declaratory ruling, and we establish
    certain required and recommended procedures regarding the service of
    pleadings and comment periods in such proceedings. We believe that
    these procedures will facilitate the prompt resolution of petitions
    seeking relief from the Commission under Section 332(c)(7)(B)(v),
    while ensuring that State and local governments have an opportunity
    to respond to issues raised in the context of these proceedings.

2.  We also conclude that the other issues raised in the *RF Procedures
    Notice* are best addressed through case-by-case adjudication, and we
    therefore terminate our consideration of these issues in the
    rulemaking context. In light of developments since the *RF
    Procedures Notice* was released, we now believe that binding rules
    globally resolving these issues are neither necessary nor
    appropriate. In particular, we note the recent release by the
    Commission and the Local and State Government Advisory Committee
    (LSGAC) of *A Local Government Official's Guide to Transmitting
    Antenna RF Emission Safety: Rules, Procedures, and Practical
    Guidance* (*Local Official's Guide*).[^3] We expect that the *Local
    Official's Guide* will facilitate the common sense resolution of
    disputes regarding demonstrations of compliance with the
    Commission's RF emissions rules, without resort to litigation or
    other formal dispute resolution.

# BACKGROUND

3.  Section 704(a) of the Telecommunications Act of 1996[^4] amended
    Section 332(c) of the Communications Act (the "Act") by adding a new
    Section 332(c)(7) entitled \"Preservation of Local Zoning
    Authority.\"[^5] Section 332(c)(7)(A) states that except as provided
    in Section 332(c)(7), nothing in the Communications Act shall
    \"limit or affect the authority of a State or local government or
    instrumentality thereof over decisions regarding the placement,
    construction, and modification of personal wireless service
    facilities.\"[^6] Sections 332(c)(7)(B)(i)-(iii) provide that a
    State or local government: may not, in regulating the placement,
    construction and modification of personal wireless service
    facilities, unreasonably discriminate among providers of personal
    wireless services; may not regulate the placement, construction, and
    modification of such facilities in a manner that prohibits or has
    the effect of prohibiting the provision of personal wireless
    services; must act on any request for authorization to place,
    construct, or modify personal wireless service facilities within a
    reasonable period of time; and must render any denial of a request
    to place, construct, or modify personal wireless service facilities
    by means of a written decision supported by substantial evidence
    contained in a written record.[^7]

4.  Section 332(c)(7)(B)(iv) provides that:

> 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.[^8]

Claims alleging a violation of Section 332(c)(7)(B)(iv) are governed by
somewhat different provisions than alleged violations of other
provisions of Section 332(c)(7)(B). Pursuant to Section 332(c)(7)(B)(v),
any person adversely affected by a State or local government\'s final
action or failure to act that is inconsistent with any provision of
Section 332(c)(7)(B) may file an action within 30 days in a court of
competent jurisdiction.[^9] As an alternative, however, \"\[a\]ny person
adversely affected by an act or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with
clause (iv) may petition the Commission for relief.\"[^10]

5.  On March 9, 1997, the Personal Communications Industry Association
    (PCIA) requested that the Wireless Telecommunications Bureau (WTB)
    initiate a proceeding to resolve several issues associated with
    Sections 332(c)(7)(B)(iv) and (v). Specifically, PCIA requested that
    the Commission develop policy guidelines that clearly describe under
    what circumstances State and local testing and documentation
    requirements related to the environmental effects of RF emissions
    become so onerous as to effectively constitute State and local
    regulation of these emissions.[^11] On July 15, 1997, LSGAC
    submitted its Recommendation Number 5 concerning PCIA\'s
    letter.[^12] LSGAC recommended that the Commission work with State
    and local governments and industry to develop a mutually acceptable
    RF testing and documentation system for adoption by State and local
    governments.[^13]

6.  On August 25, 1997, we issued the *RF Procedures Notice*, which
    requested comments on proposals developed in response to the PCIA
    and LSGAC Letters, as well as related matters developed
    independently by Commission staff.[^14] In particular, the *RF
    Procedures* *Notice* sought comment on the following issues: (1)
    procedures for filing and serving petitions for relief under Section
    332(c)(7)(B)(v) with the Commission;[^15] (2) standing to file
    petitions and participate in Commission proceedings under Section
    332(c)(7)(B)(v),[^16] and standing to seek review of final
    Commission and delegated authority actions taken pursuant to Section
    332(c)(7)(B)(v);[^17] (3) for purposes of proceedings under Section
    332(c)(7)(B)(v), whether to establish a rebuttable presumption that
    personal wireless service facilities will comply with the
    Commission's RF emissions rules, and procedures for State or local
    governments or other interested parties to rebut the presumption;
    [^18] (4) the definition of certain terms under Sections
    332(c)(7)(B)(iv) and 332(c)(7)(B)(v);[^19] and (5) what
    demonstration a State or local government may require of a carrier
    to show that a facility will comply with the Commission's rules
    concerning RF emissions.[^20] Thirty-seven parties or groups of
    parties filed formal comments, and 34 parties filed reply
    comments.[^21] In addition, the Commission received numerous *ex
    parte* communications, which were placed in the record for this
    proceeding. Although we do not individually list these *ex parte*
    communications, we have considered them in this proceeding.

# discussion

## Procedures for Filing, Serving, and Resolving Petitions

7.  [Background]{.underline}. In the *RF Procedures* *Notice*, we
    proposed that parties seeking relief from the Commission under
    Section 332(c)(7)(B)(v) shall file a request for declaratory ruling
    pursuant to Section 1.2 of the Commission's rules,[^22] asking that
    the Commission review the State or local regulation and grant
    appropriate relief.[^23] In addition, we proposed that a copy of the
    request be served on the State or local authority that took action
    or failed to take action against which relief is sought.[^24]

8.  On November 17, 1998, the Commission issued a public notice that
    established procedural guidelines for filing petitions for
    preemption of State or local government authority pursuant to
    Section 253 of the Act.[^25] Among other things, the public notice
    states that the pleading cycle for petitions under Section 253 shall
    be approximately 30 days for oppositions and approximately 15 days
    for replies, but that the specific timeframe will be established by
    the relevant Bureau by public notice, and may be less than the
    approximate timeframe listed above if the Bureau finds that good
    cause exists.[^26] In addition, the public notice directs
    petitioners to serve a copy of Section 253 petitions on each State
    or local government entity to which the petition applies and to
    reference such service in the petition.[^27]

9.  On November 9, 1999, the Commission issued a Memorandum Opinion and
    Order that, among other things, amended the Commission's *ex parte*
    rules to make the service requirement described in the preceding
    paragraph applicable to all petitions requesting preemption of State
    or local government authority (including petitions for declaratory
    ruling and petitions for rulemaking), and not only preemption
    petitions filed under Section 253.[^28] In addition, the *Ex Parte
    Order* expanded this service requirement to include not only "those
    state and localities that are the subject of the petition" but also
    "those whose actions are identified as warranting preemption."[^29]

10. [Discussion]{.underline}. Commenters generally favor using the
    Commission\'s declaratory ruling process to consider petitions filed
    pursuant to Section 332(c)(7)(B)(v).[^30] We agree that the
    Commission's declaratory ruling process is an efficient means of
    handling such petitions. Thus, we conclude that parties seeking
    relief from the Commission under Section 332(c)(7)(B)(v) shall file
    a request for declaratory ruling pursuant to Section 1.2 of the
    Commission's rules. In addition, we conclude that such petitions
    shall be subject to the Commission's procedures applicable to
    petitions for declaratory ruling,[^31] with the exception of the
    pleading cycle guidelines and service rules set forth in the
    following paragraphs.

11. Section 1.45(b) of our rules, which generally governs oppositions to
    petitions for declaratory ruling, provides that \"\[o\]ppositions to
    any motion, petition, or request may be filed within 10 days after
    the original pleading is filed."[^32] Several commenters argue that
    10 days is too short a period for State and local governments to
    respond to petitions filed pursuant to Section 332(c)(7)(B)(v), and
    believe 30 days would be a more appropriate period.[^33] These
    commenters argue that proceedings addressing petitions for relief
    under Section 332(c)(7)(B)(v) are inherently fact-based, and 10 days
    is too short a time frame for State and local governments to gather
    the necessary facts.[^34] We agree with this position, which is not
    opposed. We find that the pleading cycle guidelines set forth in the
    *Section 253 Procedures Public Notice* are equally appropriate for
    petitions for declaratory ruling that seek relief under Section
    332(c)(7)(B)(v).[^35] Specifically, we anticipate that the pleading
    cycle for petitions for declaratory ruling that seek relief under
    Section 332(c)(7)(B)(v) will be approximately 30 days for
    oppositions and approximately 15 days for replies. The specific
    pleading cycle for each petition will be established by the Wireless
    Telecommunications Bureau (Bureau) by public notice, and may vary
    from the approximate timeframe listed above if the Bureau finds that
    variation is appropriate.

12. We also find that petitions for declaratory ruling seeking relief
    under Section 332(c)(7)(B)(v) are similar to petitions seeking
    Commission preemption of State or local government authority, and
    should be subject to the *Ex Parte Order's* expanded service rules
    referenced in paragraph 9 above.[^36] Accordingly, we amend the
    expanded service requirements in the *ex parte* rules to include
    petitioners seeking relief under Section 332(c)(7)(B)(v).[^37] Thus,
    petitioners seeking relief under Section 332(c)(7)(B)(v) must serve
    a copy of such petitions not only on those State and local
    governments that are the subject of the petitions, but also on those
    State and local governments otherwise specifically identified in the
    petitions whose actions petitioners argue are inconsistent with
    federal law.[^38] In addition, we recommend that, if a petition
    involves a local statute, regulation, ordinance, or legal
    requirement, the petitioner should serve the appropriate state
    entity, in addition to the appropriate local entity.[^39] We also
    recommend that, subsequent to the filing and service of the initial
    petition, 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
    Commission's *ex parte* rules. [^40]

13. We believe that the procedural guidelines recommended in paragraph
    11 above, the revision to the *Ex Parte Order's* expanded service
    requirements in paragraph 12, and other Commission rules generally
    applicable to petitions for declaratory ruling provide a fair and
    balanced approach to reviewing requests for relief under Section
    332(c)(7)(B)(v). In particular, we believe that these procedures
    will facilitate the prompt resolution of petitions seeking relief
    from the Commission under Section 332(c)(7)(B)(v), while ensuring
    that State and local governments have an opportunity to respond to
    allegations raised against them in the context of these proceedings.
    We therefore decline to adopt further rules or guidelines suggested
    by commenters for filing, serving, and resolving petitions for
    relief under Section 332(c)(7)(B)(v).

14. For example, we decline to adopt the recommendation of several
    carriers that we impose a 30 day deadline for our own resolution of
    petitions filed under Section 332(c)(7)(B)(v).[^41] While we
    understand the need to facilitate the build-out process and the need
    for carriers to have fast resolution of siting disputes in order to
    allow for faster build-out, we are not prepared to adopt a time
    limit for resolving petitions for relief under Section
    332(c)(7)(B)(v) because we are concerned that doing so will not
    afford the Commission sufficient flexibility to account for the
    particular circumstances of each case. In addition, we decline to
    adopt CCO's proposal that copies of petitions filed with the
    Commission pursuant to Section 332(c)(7)(B)(v) should be served by
    hand on the affected State or local governments.[^42] All documents
    that are required to be served on State or local governments under
    this order must be served in a manner that comports with our general
    rules governing service of process, which supplies a sufficient
    degree of notice to afford the affected parties an adequate
    opportunity to respond.[^43] We decline to adopt the recommendation
    of some commenters that we impose default judgments against those
    State and local governments that fail to respond to petitions filed
    pursuant to Section 332(c)(7)(B)(v).[^44] We do not believe that it
    is appropriate to limit our ability to render a decision in a
    Section 332(c)(7)(B)(v) proceeding on substantive grounds, even
    where a State or local government fails to respond to the petition.
    Moreover, we believe that it is unnecessary to routinely impose
    default judgements against State or local governments that fail to
    respond to Section 332(c)(7)(B)(v) petitions. Since a decision on a
    petition filed pursuant to Section 332(c)(7)(B)(v) will be largely
    factual, a State or local government\'s failure to respond to a
    Section 332(c)(7)(B)(v) petition will likely put it at a serious
    disadvantage, and we anticipate that unopposed petitions will be
    amenable to resolution relatively quickly.

## Demonstration of RF Compliance

15. [Background]{.underline}. In the *RF Procedures Notice*, we sought
    comment on the extent to which localities are permitted to request
    personal wireless service providers to demonstrate compliance with
    the Commission's RF exposure guidelines.[^45] Under Section
    332(c)(7)(B)(iv), State and local regulation of personal wireless
    service facilities siting based on the environmental effects of RF
    emissions is preempted "to the extent that such facilities comply
    with the Commission's regulations concerning such emissions." This
    leaves unresolved the issue of what State and local governments can
    require as proof of compliance with the Commission's regulations.

16. The Commission and the LSGAC produced the *Local Official's Guid*e
    in response to misunderstandings between industry and local
    governments regarding this issue. The *Local Official's Guide*
    provides information and voluntary guidance to local governments to
    facilitate their ability to devise reasonable and effective
    procedures for assuring that antenna facilities located within their
    boundaries comply with Commission limits for human exposure to RF
    emissions. It provides a summary of the Commission's RF exposure
    guidelines and the Commission's procedures for ensuring compliance
    and enforcing its rules. It also provides guidance to local
    governments attempting to determine if a radio transmission facility
    may raise compliance concerns by helping local governments to
    recognize sites that do not raise compliance concerns. In addition,
    it provides information for initiating a Commission inquiry in
    instances where a facilities operator is unable to dispel a local
    government's concerns about compliance.

17. [Discussion]{.underline}. Pursuant to Section 332(c)(7), and
    consistent with the Commission's general authority to regulate the
    operation of radio facilities,[^46] State and local governments are
    broadly preempted from regulating the operation of personal wireless
    service facilities based on RF emission considerations. Thus, for
    example, a local government may not require a facility to comply
    with RF emissions or exposure limits that are stricter than those
    set forth in the Commission's rules, and it may not restrict how a
    facility authorized by the Commission may operate based on RF
    emissions or any other cause. We note that the Commission's plenary
    authority in this area has recently been upheld by the courts.[^47]
    Thus, State or local authority with respect to personal wireless
    service facilities is limited to regulation of the placement,
    construction, and modification of such facilities. The sole question
    in this area posed by the *RF Procedures Notice* was the extent of a
    State or local government's authority, in the context of such
    regulation, to require a demonstration of compliance with our RF
    exposure guidelines.

18. We recognize that State and local governments have a legitimate
    interest in ascertaining that facilities will comply with the RF
    exposure limits set forth in our rules. We also recognize that
    certain requirements related to demonstrating compliance can be
    unnecessarily burdensome on carriers. Although the *Local Official's
    Guide* is not legally binding, we expect it will help produce a
    framework for local and State governments and wireless service
    providers to work cooperatively on this issue. As a result of the
    *Local Official's Guide*, we expect that many disputes pertaining to
    demonstrations of compliance will be resolved by the parties in a
    manner that will allow personal wireless services to be deployed and
    delivered to consumers as rapidly as possible, while preserving the
    authority of State and local jurisdictions in land use matters and
    protecting the public health. Moreover, where there is a genuine
    question regarding a site's compliance with the RF exposure limits,
    Commission staff will promptly take all appropriate actions to
    ensure compliance.[^48] In particular, if a local government were to
    make a Commission inquiry regarding a site's compliance with RF
    exposure limits in a case where compliance cannot be readily
    demonstrated by applying the principles set forth in the *Local
    Official's Guide*, we would require the operator of the facility to
    provide sufficient information to demonstrate compliance.[^49]
    Therefore, we do not believe any binding rule governing
    demonstrations of compliance is necessary. To the extent that any
    party may argue in a properly filed case that a particular
    requirement to demonstrate compliance violates Section 332(c)(7), we
    will consider the issue in that context.

## Other Issues

19. [Background]{.underline}. In addition to the issues discussed in
    Sections III.A and III.B above, the *RF Procedures Notice* sought
    comment on: (1) who has standing to file petitions and participate
    in Commission proceedings under Section 332(c)(7)(B)(v),[^50] and
    who has standing to seek review of final Commission and delegated
    authority actions taken pursuant to Section
    332(c)(7)(B)(v);[^51] (2) for purposes of proceedings under Section
    332(c)(7)(B)(v), whether to establish a rebuttable presumption that
    personal wireless service facilities will comply with the
    Commission's RF emissions rules, and procedures for State or local
    governments or other interested parties to rebut the presumption;
    [^52] and (3) the definition of certain terms under Sections
    332(c)(7)(B)(iv) and 332(c)(7)(B)(v).[^53] We received a number of
    comments on these issues from the personal wireless service
    industry, State and local governments, and concerned citizens.

20. [Discussion]{.underline}. We conclude that it is not necessary to
    reach a global resolution of the remaining issues at this time. When
    we issued the *RF Procedures Notice*, we believed that advance
    resolution of many of the procedural and definitional issues would
    be helpful to parties, as well as to courts.[^54] Subsequent
    developments, however, do not suggest the need for further guidance
    on these issues. Indeed, we have received only one petition for
    relief under section 332(c)(7)(B)(v), and that petition was
    withdrawn after the parties settled the underlying controversy.[^55]
    Furthermore, although there have been numerous reported court
    decisions under Section 332(c)(7), only a small proportion of these
    decisions have involved RF emissions issues. There do not appear to
    be serious differences among courts in addressing these issues.[^56]
    Under these circumstances, and given the complexity of these issues,
    we conclude that these issues are best addressed through
    case-by-case adjudication.

# PROCEDURAL MATTERS

## Regulatory Flexibility Act

21. [Final Regulatory Flexibility Certification]{.underline}. The *RF
    Procedures Notice* incorporated an Initial Regulatory Flexibility
    Analysis (IRFA) of the proposed rules pursuant to 5 U.S.C. §
    605.[^57] No comments were filed on the IRFA. Section 604 of the
    Regulatory Flexibility Act, as amended, requires a final regulatory
    flexibility analysis in a notice and comment rulemaking proceeding
    unless the Commission certifies that "the rule will not, if
    promulgated, have a significant economic impact on a substantial
    number of small entities."[^58] The RFA generally defines \"small
    entity\" as having the same meaning as the terms \"small business,\"
    \"small organization,\" and \"small governmental
    jurisdiction.\"[^59] In addition, the term \"small business\" has
    the same meaning as the term \"small business concern\" under the
    Small Business Act.[^60] A small business concern is one which: (1)
    is independently owned and operated; (2) is not dominant in its
    field of operation; and (3) satisfies any additional criteria
    established by the Small Business Administration (SBA).[^61] The
    Commission believes, as discussed below, that the rule adopted in
    this proceeding will not have a significant economic impact on a
    substantial number of small entities.

22. As discussed above in paragraph 12 , the Commission is making one
    rule change in this *Report and Order*. Specifically, the Commission
    amends Note 1 to Section 1.1206(a) of the Commission's rules so that
    the expanded service requirements set forth in that note apply to
    petitions filed pursuant to Section 332(c)(7)(B)(v) (*i.e.*,
    petitions for relief from impermissible State and local regulation
    of personal wireless service facilities on the basis of RF
    emissions). Thus, petitioners seeking relief under Section
    332(c)(7)(B)(v) must serve a copy of such petitions on those State
    and local governments that are the subject of the petitions as well
    as on those State and local governments otherwise specifically
    identified in the petitions whose actions petitioners argue are
    inconsistent with federal law. Given that the Commission has
    received only one petition for relief under section 332(c)(7)(B)(v),
    [^62] we do not anticipate that numerous State and local governments
    will be the subject of such petitions or identified in such
    petitions. Thus, we do not expect that the service requirement
    adopted in this *Report and Order* will impose a significant burden
    of cost and time on petitioners, including petitioners that are
    small entities. We believe that this service requirement will
    facilitate the efficient resolution of petitions seeking relief
    under Section 332(c)(7)(B)(v). Moreover, we believe that this
    requirement will ensure that State and local governments, including
    those governments that are small entities, have an opportunity to
    participate in proceedings under Section 332(c)(7)(B)(v).

23. Accordingly, the Commission certifies, pursuant to Section 605(b) of
    the Regulatory Flexibility Act,[^63] as amended by the Contract with
    America Advancement Act of 1996,[^64] that the rule adopted in this
    *Report and Order* will not have a significant economic impact on a
    substantial number of small entities. The Commission will send a
    copy of the *Report and Order*, including a copy of this final
    certification, in a report to Congress pursuant to the Small
    Business Regulatory Enforcement Fairness Act of 1996.[^65] In
    addition, the *Report and Order* and this certification will be sent
    to the Chief Counsel for Advocacy of the Small Business
    Administration, and a summary will be published in the Federal
    Register.[^66]

## Paperwork Reduction Act

24. This *Report and Order* contains a new information collection.
    Specifically, the *Report and Order* amends Note 1 to Section
    1.1206(a) of the Commission's rules so that the expanded service
    requirements set forth in that note apply to petitions filed
    pursuant to Section 332(c)(7)(B)(v) (*i.e.*, petitions for relief
    from impermissible State and local regulation of personal wireless
    service facilities on the basis of RF emissions). Thus, petitioners
    seeking relief under Section 332(c)(7)(B)(v) must serve a copy of
    such petitions on those State and local governments that are the
    subject of the petitions as well as on those State and local
    governments otherwise specifically identified in the petitions whose
    actions petitioners argue are inconsistent with federal law.

25. As part of our continuing effort to reduce paperwork burdens, we
    invite the general public and the Office of Management and Budget
    (OMB) to take this opportunity to comment on the infor­mation
    collection contained in this Order, as required by the Paperwork
    Reduction Act of 1995.[^67] Public and agency comments are due 60
    days from publication of the summary of this *Report and Order* in
    the Federal Register, and OMB comments are due 60 days from that
    date. Comments should address: (1) whether the proposed collection
    of information is necessary for the proper performance of the
    functions of the Commission, including whether the information shall
    have practi­cal utility; (2) the accuracy of the Commission\'s burden
    estimates; (3) ways to enhance the quality, utility, and clarity of
    the information collected; and (4) ways to minimize the burden of
    the collection of information on the respondents, in­cluding the use
    of automated collection techniques or other forms of information
    tech­nology.

26. In addition to filing comments with the Secretary, a copy of any
    comments on the information collections contained herein should be
    submitted to Judy Boley, Federal Communications Commission, Room
    1-C804, 445 Twelfth Street, S.W., Washington, D.C. 20554, or via the
    Internet to jboley@fcc.gov, and to Edward C. Springer, OMB Desk
    Officer, Room 10236 New Executive Office Building, 725 Seventeenth
    Street, N. W., Washington, D.C. 20503, or via the Internet to
    <edward.springer@omb.eop.gov>.

# CONCLUSION

27. As discussed above, we provide that requests filed under Section
    332(c)(7)(B)(v) shall be filed as petitions for declaratory ruling,
    and we establish certain recommended procedures regarding the
    comment periods and the service of pleadings in such proceedings. We
    also amend Note 1 to Section 1.1206(a) of the Commission's rules so
    that the expanded service requirements set forth in that note apply
    to these proceedings. We believe that these procedures will ensure
    that petitions seeking relief under Section 332(c)(7)(B)(v) will be
    resolved efficiently, with an opportunity for all interested parties
    to participate. With respect to all other issues raised in the *RF
    Procedures Notice*, we terminate the present proceeding.

# ORDERING CLAUSES

28. Pursuant to the authority contained in Sections 4(i), 303(r), and
    332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i), 303(r), and 332(c)(7), IT IS ORDERED that this Report and
    Order is hereby ADOPTED.

29. IT IS FURTHER ORDERED that the rule amendment made by this Report
    and Order, and specified in Appendix B, SHALL BECOME EFFECTIVE 120
    days after publication of a summary of the Report and Order in the
    Federal Register, pending OMB approval.

30. IT IS FURTHER ORDERED that the motion of the City of Fountain,
    Colorado, to consider late-filed comments is GRANTED.

31. IT IS FURTHER ORDERED that the Commission\'s Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    Report and Order, including the Final Regulatory Flexibility
    Certification, to the Chief Counsel for Advocacy of the Small
    Business Administration.

    FEDERAL COMMUNICATIONS COMMISSION

> Magalie Roman Salas
>
> Secretary

**Appendix A**

**Comments**

Ad-Hoc Association of Parties Concerned About the Federal Communications
Commission\'s Radiofrequency Health and Safety Rules (Ad-Hoc
Association)

Ameritech Mobile Communications, Inc.

AT&T Wireless Services, Inc.

BellSouth Corporation

Bozeman City-County Planning Council

Cellular Phone Taskforce

Cellular Telecommunications Industry Association, Inc.

Concerned Communities and Organizations (CCO)

Cunningham, Scott R.

GTE Service Corporation

Haavind, Diane

Horowitz, Jean

Hutchins, Mark F.

Jefferson Parish, Louisiana

Local and State Government Advisory Committee (LSGAC)

Maddux, Dealy-Doe-Eyes

Mobile Services

National League of Cities and the National Association of
Telecommunications Officers and Advisers (NATOA)

New York City Department of Information Technology and
Telecommunications and New York

City Department of Health

Occhiuto, David

Orange County, Florida

Ormond Beach, Florida

Palm Beach County, Florida

Personal Communications Industry Association (PCIA)

PrimeCo Personal Communications, L.P. (PrimeCo)

Rayner, Lucia

Romano, JoAnn and family

San Francisco, City and County of

San Juan County, Washington, Laura Arnold, Planning Director

San Juan County, Washington, Rhea Miller, Commissioner, District 3

San Juan County, Washington, Darcie L. Nielsen, Commissioner, District 1

Seattle City Council

Southwestern Bell Mobile Systems, Inc., Southwestern Bell Wireless,
Inc., and Pacific Bell

Sprint Spectrum L.P. d/b/a Sprint PCS

US West, Inc.

Vermont Environmental Board

Vermont House of Representatives

Worsham, Michael

**Replies to Comments**

Ad Hoc Association

Airtouch Communications, Inc.

Ameritech Mobile Communications, Inc.

AT&T Wireless Services, Inc.

BellSouth Corporation

Bennett, Myrna

Bird, Stephen

Cape Cod Commission

Cellular Telecommunications Industry Association, Inc.

Concerned Communities and Organizations

Connecticut Siting Council and Richard Blumenthal, Attorney General of
Connecticut

Emermen, Annie and Sidney

Ergotec Association, Inc.

Fountain, Colorado, City of

Fusion UV Systems

GTE Service Corporation

Hardwick (Vermont) Action Committee

Hurdiburg, Peter

Institute of Natural Therapies

Mobile Services

NATOA

Nextel Communications, Inc

Palm Beach County, Florida

PCIA

Powertel PCS, Inc.

PrimeCo

Southwestern Bell Mobile Systems, Inc., Southwestern Bell Wireless,
Inc., and Pacific Bell

Sprint Spectrum L.P. d/b/a Sprint PCS

Tschudy, Richard L.

U.S. Congress Representative Bernard Sanders

U.S. Congress Senator Patrick Leahy

US West, Inc.

Vermont House of Representatives Majority Leader Paul A.Cillo

Vermont Representative David Deen

Whitehall, Ohio, City of

**Appendix B**

#######  {#section .unnumbered}

####### Final Rule {#final-rule .unnumbered}

#######  {#section-1 .unnumbered}

####### Part 1 of Title 47 of the Code of Federal Regulations is amended as follows: {#part-1-of-title-47-of-the-code-of-federal-regulations-is-amended-as-follows .unnumbered}

####### Part 1 -- PRACTICE AND PROCEDURE {#part-1-practice-and-procedure .unnumbered}

1\. The authority citation for Part 1 continues to read as follows:

**AUTHORITY: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.**

2\. Section 1.1206 is revised to read as follows:\
\
§ 1.1206 Permit-but-disclose proceedings.\
\
(a) \*\*\*

#######  Note 1 to paragraph (a): In the case of petitions for declaratory ruling that seek Commission preemption of state or local regulatory authority and petitions for relief under 47 U.S.C. § 332(c)(7)(B)(v), the petitioner must serve the original petition on any state or local government, the actions of which are specifically cited as a basis for requesting preemption. Service should be made on those bodies within the state or local governments that are legally authorized to accept service of legal documents in a civil context. Such pleadings that are not served will be dismissed without consideration as a defective pleading and treated as a violation of the ex parte rules unless the Commission determines that the matter should be entertained by making it part of the record under §1.1212(d) and the parties are so informed.  {#note-1-to-paragraph-a-in-the-case-of-petitions-for-declaratory-ruling-that-seek-commission-preemption-of-state-or-local-regulatory-authority-and-petitions-for-relief-under-47-u.s.c.-332c7bv-the-petitioner-must-serve-the-original-petition-on-any-state-or-local-government-the-actions-of-which-are-specifically-cited-as-a-basis-for-requesting-preemption.-service-should-be-made-on-those-bodies-within-the-state-or-local-governments-that-are-legally-authorized-to-accept-service-of-legal-documents-in-a-civil-context.-such-pleadings-that-are-not-served-will-be-dismissed-without-consideration-as-a-defective-pleading-and-treated-as-a-violation-of-the-ex-parte-rules-unless-the-commission-determines-that-the-matter-should-be-entertained-by-making-it-part-of-the-record-under-1.1212d-and-the-parties-are-so-informed. .unnumbered}

\*\*\*\*\*

[^1]: Procedures for Reviewing Requests for Relief From State and Local
    Regulations Pursuant to Section 332(c)(7)(B)(v) of the
    Telecommunications Act of 1934, WT Docket No. 97-192, *Second
    Memorandum Opinion and Order and Notice of Proposed Rulemaking*, 12
    FCC Rcd 13494, 13540-60, ¶¶ 115-54 (1997) (*RF Procedures Notice*),
    *aff'd* *Cellular Phone Taskforce v. FCC*, 205 F.3d 82 (2d Cir.
    2000) (*Cellular Phone Taskforce*).

[^2]: 47 U.S.C. § 332(c)(7)(B)(v).

[^3]: *A Local Official's Guide to Transmitting Antenna RF Emission
    Safety: Rules, Procedures, and Practical Guidance* (June 2, 2000),
    available at \<<http://www.fcc.gov/wtb/siting>\> (*Local Official's
    Guide*). The LSGAC is a body of elected and appointed local, State,
    and tribal government officials appointed by the Chairman of the
    Commission. It provides advice and information to the Commission on
    key issues that concern local and State governments and communicates
    State and local government policy concerns regarding proposed
    Commission actions.

[^4]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
    (1996).

[^5]: 47 U.S.C. § 332(c)(7).

[^6]: *Id.* at § 332(c)(7)(A).

[^7]: *See* *id*. at § 332(c)(7)(B)(i)-(iii).

[^8]: *Id.* at § 332(c)(7)(B)(iv).

[^9]: *See id*. at § 332(c)(7)(B)(v).

[^10]: *Id.*

[^11]: *See* Letter from Jay Kitchen, President, Personal Communications
    Industry Association, to Michele F. Farquhar, Chief, and Rosalind
    Allen, Deputy Chief, Wireless Telecommunications Bureau (March 19,
    1997) (*PCIA Letter*). PCIA further requested that we: (1) prohibit
    the presentation of evidence regarding the health effects of RF
    emissions at zoning board hearings absent an affirmative showing
    that the zoning applicant has failed to comply with federal
    standards; (2) promulgate streamlined procedures for processing
    petitions that request preemption of State and local rules that
    attempt to regulate RF emissions in a manner inconsistent with
    federal standards; and (3) propose procedures for filing and
    reviewing requests filed pursuant to Section 332(c)(7)(B)(iv)-(v) of
    the Communications Act for relief from State or local regulations of
    the placement, construction, or modification of personal wireless
    service facilities based either directly or indirectly on the
    environmental effects of RF emissions. *See* *id.* at 2.

[^12]: *See* Local and State Government Advisory Committee
    Recommendation Number 5 (submitted July 15, 1997),
    \<http://www.fcc.gov/statelocal/recommendation5.html\> (*LSGAC
    Letter*).

[^13]: We have incorporated the *PCIA Letter* and the *LSGAC Letter*
    into the record and will treat both letters as comments in this
    proceeding.

[^14]: *See RF Procedures Notice*, 12 FCC Rcd 13494.

[^15]: *See id.* at 13556-57, ¶ 149.

[^16]: *See id.* at 13557, ¶ 150.

[^17]: *See id.* at 13560, ¶ 153.

[^18]: *See id.* at 13557-60, ¶¶ 151-154.

[^19]: *See id.* at 13549-52, ¶¶ 135-141.

[^20]: *See id.* at 13552-56, ¶¶ 142-148.

[^21]: Commenters included personal wireless service providers and their
    representatives, State and local governments, and concerned
    citizens. A complete list of all of the formally commenting parties
    and the short forms by which they are cited is included in Appendix
    A. We grant the City of Fountain, Colorado\'s motion to consider
    late-filed comments, filed on November 14, 1997, and, accordingly,
    include the City as a party in Appendix A.

[^22]: 47 C.F.R. § 1.2.

[^23]: *See* *RF* *Procedures Notice*, 12 FCC Rcd at 13556, ¶ 149.

[^24]: *See* *id.* at 13557, ¶ 149.

[^25]: Suggested Guidelines for Petitions for Ruling under Section 253
    of the Communications Act, *Public Notice*, 13 FCC Rcd 22970 (1998)
    (*Section 253 Procedures Public Notice*). 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. *See* 47 U.S.C. § 253.

[^26]: *See Section 253 Procedures Public Notice*, 13 FCC Rcd at
    22973-74.

[^27]: *See id.* at 22974.

[^28]: *See* Amendment of 47 C.F.R. §1.1200 *et seq.* Concerning Ex
    Parte Presentations in Commission Proceedings, *Memorandum Opinion
    and Order*, 14 FCC Rcd 18831, 18838-39, ¶ 29 (1999) (*Ex Parte
    Order*).

[^29]: *Id.*

[^30]: *See, e.g.*, Ameritech Comments at 7; CCO Comments at 30-31;
    NATOA Reply at 17; Vermont Environmental Board Comments at 13.

[^31]: *See, e.g.,* 47 C.F.R. §§ 1.45 - 1.49 (filing procedures) and 47
    C.F.R. § 1.1206(a)(3) (permit-but-disclose *ex parte* status).

[^32]: 47 C.F.R. § 1.45(b).

[^33]: *See* NATOA Reply at 17-18; PCIA Comments at 10; US West Comments
    at 22; s*ee also* CCO Comments at 30-31 (45 days).

[^34]: *See* NATOA Reply at 18. Some commenters further contend that
    State and local governments will have to hire outside counsel in
    Washington, D.C. in order to effectively litigate these petitions
    and that State and local governments typically can only retain
    outside counsel with the prior approval of their legislative bodies,
    which typically meet infrequently and require such items to be
    placed on their agendas weeks in advance. *See* CCO Comments at
    30-31; NATOA Reply at 17.

[^35]: *See Section 253 Procedures Public Notice*, 13 FCC Rcd at 22973;
    s*ee* *also* discussion *supra* para. 8.

[^36]: *See Ex Parte Order*, 14 FCC Rcd at 18838-39, ¶ 29; 47 C.F.R. §
    1.1206 (Note 1 to paragraph (a)).

[^37]: The text of amended Note 1 to Section 1.1206(a) is set forth in
    Appendix B.

[^38]: Petitions that are not served on State or local governments in
    accordance with the procedures established in the *Ex Parte Order*
    will be dismissed without consideration as defective pleadings and
    treated as violating the *ex parte* rules (unless the Commission
    otherwise determines that the matter should be made part of the
    record under 47 C.F.R. § 1.1212(d) and the parties are so notified).
    *See Ex Parte Order*, 14 FCC Rcd at 18838-39, ¶ 29.

[^39]: *See Section 253 Procedures Public Notice*, 13 FCC Rcd at 22974
    (recommending this procedure in the context of petitions for
    preemption of State or local government regulation under Section
    253).

[^40]: *See id.* at 22974 (recommending this procedure in the context of
    petitions for preemption of State or local government regulation
    under Section 253).

[^41]: *See* PCIA Comments at 12; US West Reply at 22-23; PrimeCo
    Comments at 15-16; Southwestern Bell Reply at 4-5. *But see* NATOA
    Reply at 22-23 (asserting that proceedings addressing petitions for
    relief under Section 332(c)(7)(B)(v) will be inherently fact-based
    and, in some cases, may require more than 30 days for thorough
    consideration).

[^42]: *See* CCO Comments at 29-30.

[^43]: *See* 47 C.F.R. § 1.47.

[^44]: *See* US West Comments at 1; PrimeCo Comments at 17.

[^45]: *See* *RF Procedures Notice*, 12 FCC Rcd at 13552, ¶ 142.

[^46]: *See* 47 U.S.C. § 301.

[^47]: *See Cellular Phone Taskforce*, 205 F.3d at 95-96.

[^48]: *See Local Official's Guide* at 10.

[^49]: The provision of such information is consistent with the
    operator's affirmative obligation to confirm compliance for all
    facilities that are not categorically excluded. *See* 47 C.F.R. §
    1.1307(b). In addition, we note that an operator must evaluate and
    determine compliance for a facility that is otherwise categorically
    excluded if specifically requested to do so by the Commission. *See*
    47 C.F.R. §§ 1.1307(c), 1.1307(d); *Local Official's Guide* at 7.

[^50]: *See RF Procedures Notice*, 12 FCC Rcd at 13557, ¶ 150.

[^51]: *See id.* at 13560, ¶ 153.

[^52]: *See id.* at 13557-60, ¶¶ 151-154.

[^53]: *See id.* at 13549-52, ¶¶ 135-141. We also note that the *RF
    Procedures Notice* referenced certain other issues, including the
    evidence that can be presented before local zoning boards, that were
    raised in the PCIA Letter. *See id.* at 13540, ¶ 115. To the extent
    such issues may be considered within the scope of the *RF Procedures
    Notice*, they are encompassed within the discussion below.

[^54]: *See* *id.* at 13542, ¶ 118.

[^55]: *See* Petition of 360° Communications Company for Declaratory
    Ruling that Section 332(c)(7)(B)(iv) of the Communications Act
    Preempts State Court Actions Limiting the Construction of Cellular
    Facilities Based Upon Radio Frequency Emission Concerns, *Order*, 14
    FCC Rcd 9172 (Com. Wir. Div. 1999) (*360° Communications Order*).

[^56]: *See, e.g*., *Goforth v. Smith*, 991 S.W.2d 579, 582-85 (Ark.
    1999) (concluding that the Telecommunications Act precluded private
    common law actions, as well as state action, on the basis of RF
    emissions*); Smart SMR v. Borough of Fair Lawn*, 704 A.2d 127 (N.J.
    1998) (finding that the zoning board was wrong in denying a tower
    application on the basis of community residents' belief that the
    Commission's RF emissions standard would not protect their health);
    *AWACS v. Newtown Township*, 702 A.2d 604 (Pa. Commw. Ct. 1997)
    (deciding that the Telecommunications Act preempts a local zoning
    board from considering the environmental effects of RF emissions);
    *Kapton v. Bell Atlantic NYNEX Mobile*, 700 A.2d 581 (Pa. Commw. Ct.
    1997) (stating that a landowner suing over a 270 foot tower for
    multiple reasons, including electromagnetic field concerns, conceded
    that the Telecommunications Act preempts the field); *Westinghouse
    Electric Corp. v. Council of Township of Hampton*, 686 A.2d 905, 908
    (Pa. Commw. Ct. 1996) (confirming the trial court's decision that RF
    concerns did not defeat the construction of a 150 foot tower by a
    wireless provider). *Cf. In re Freeman*, 975 F. Supp. 570, 574 (D.
    Vt. 1997), *aff'd sub nom in Freeman v. Burlington Broadcasters,
    Inc*., 204 F.3d 311 (2d Cir. 2000) (acknowledging, in a case
    concerning RF interference, that the Telecommunications Act preempts
    consideration of RF emissions when considering the construction or
    modification of wireless facilities). *But see Sprint Spectrum, L.P.
    v. Township of Warren Planning Board*, 737 A.2d 715 (N.J. Superior
    Ct. App. Div. 1999) (holding that the board of health could inquire
    about RF emissions and require an explanation of the methodology of
    the RF study to ensure that the Commission's emissions standards are
    followed).

[^57]: *See RF Procedures Notice*, 12 FCC Rcd at 13586-91, Appendix D.

[^58]: 5 U.S.C. § 605(b).

[^59]: *Id.* at § 601(6).

[^60]: *Id.* at § 601(3) (incorporating by reference the definition of
    \"small business concern\" in the Small Business Act, 15 U.S.C. S §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies \"unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register.\"

[^61]:  Small Business Act, 15 U.S.C. § 632.

[^62]: That petition was withdrawn after the parties settled the
    underlying controversy. *See* *360° Communications Order*, 14 FCC
    Rcd 9172; note 55 *supra*.

[^63]: *See* 5 U.S.C. § 605(b).

[^64]: Public Law No. 104-121, 110 Stat. 847 (1996).

[^65]: *See* 5 U.S.C. § 801(a)(1)(A).

[^66]: *See* *id.* at § 605(b).

[^67]: Public Law No. 104-13.