**DA 08-1913**

**Released: August 14, 2008**

**WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON PETITION FOR
DECLARATORY RULING BY CTIA -- THE WIRELESS ASSOCIATION to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to
Preempt under Section 253 State and Local Ordinances that Classify All
Wireless Siting Proposals as Requiring a Variance**

**WT Docket No. 08-165**

**Comment Date: September 15, 2008 Reply Date: September 30, 2008**

On July 11, 2008, CTIA -- The Wireless Association (CTIA) filed a
petition requesting that the Federal Communications Commission
("Commission") issue a Declaratory Ruling clarifying provisions of the
Communications Act of 1934, as amended ("Communications Act") regarding
state and local review of wireless facility siting applications.[^1]
CTIA seeks clarification of provisions in Section 332(c)(7) of the
Communications Act that it contends are ambiguous and that it claims
have been interpreted in a manner that has allowed certain zoning
authorities to impose unreasonable impediments to wireless facility
siting and the provision of wireless services. CTIA also requests that
the Commission preempt local ordinances and state laws that it states
subject wireless facility siting applications to unique, burdensome
requirements, in violation of Section 253(a) of the Communications Act,
which bars state and local laws that "prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service."[^2]

Specifically, in its petition, CTIA asks the Commission to take four
actions relating to the time frames in which zoning authorities must act
on siting requests, their power to restrict competitive entry by
multiple providers in a given area, and their ability to impose certain
procedural requirements on wireless service providers. First, to
eliminate an ambiguity that CTIA contends currently exists in Section
332(c)(7)(B)(v) of the Communications Act, CTIA asks the Commission to
clarify the time period in which a state or local zoning authority will
be deemed to have failed to act on a wireless facility siting
application. CTIA states that "the Commission should issue a declaratory
ruling explaining that (1) a failure to act on a wireless facility
siting application only involving collocation occurs if there is no
final action within 45 days from submission of the request to the local
zoning authority; and (2) a failure to act on any other wireless siting
facility application occurs if there is no final action within 75 days
from submission of the request to the local zoning authority."[^3]
Second, citing the requirement in Section 332(c)(7)(B)(ii) of the
Communications Act that state and local governments act on wireless
facility siting applications within a reasonable time, CTIA asks the
Commission to implement procedural steps whereby, if a zoning authority
fails to act within the above time frames, the application shall be
"deemed granted." Alternatively, CTIA asks the Commission to establish a
presumption that entitles an applicant to a court-ordered injunction
granting the application unless the zoning authority can justify the
delay. Third, CTIA asks the Commission to clarify that Section
332(c)(7)(B)(i)(II), which forbids state and local decisions that
"prohibit or have the effect of prohibiting the provision of personal
wireless services,"[^4] bars zoning decisions that have the effect of
preventing a specific provider from providing service to a location on
the basis of another provider's presence there. Finally, CTIA requests
that the Commission preempt, under Section 253 of the Communications
Act, local ordinances and state laws that automatically require a
wireless service provider to obtain a variance before siting facilities.

**Procedural Matters**

Comments on the petition are due **no later than September 15, 2008**.
Reply comments are due **no later than September 30, 2008**. All filings
should reference the docket number of this proceeding, WT Docket No.
08-165.

This proceeding has been designated as a "permit-but-disclose"
proceeding in accordance with the Commission\'s *ex parte* rules.[^5]
Parties making oral *ex parte* presentations in this proceeding are
reminded that memoranda summarizing the presentation must contain the
presentation's substance and not merely list the subjects discussed.[^6]
More than a one- or two-sentence description of the views and arguments
presented is generally required.[^7]

The petition is available for public inspection and copying in the
Commission\'s Reference Center, Room CY-A257, 445 12th Street, S.W.,
Washington, D.C. 20554. Copies of the petition also may be obtained via
the Commission\'s Electronic Comment Filing System (ECFS) by entering
the docket number, WT Docket No. 08-165. Copies of the request are also
available from Best Copy and Printing, Inc., telephone (800) 378-3160,
facsimile (301) 816-0169, e-mail FCC@BCPIWEB.com.

Comments may be filed using the Commission\'s Electronic Comment Filing
System (ECFS) or by filing paper copies. *See* *Electronic Filing of
Documents in Rulemaking Proceedings*, 63 Fed. Reg. 24121 (1998).
Comments filed through the ECFS can be sent as an electronic file via
the Internet to http:// www.fcc.gov/cgb/ecfs/. Generally, only one copy
of an electronic submission must be filed. If multiple docket or
rulemaking numbers appear in the caption of this proceeding, however,
commenters must transmit one electronic copy of the comments to each
docket or rulemaking number referenced in the caption. In completing the
transmittal screen, commenters should include their full name, U.S.
Postal Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet
e-mail. To get filing instructions for e-mail comments, commenters
should send an e-mail to ecfs@fcc.gov, and should include the following
words in the body of the message, "get form." A sample form and
directions will be sent in reply.

Parties who choose to file by paper must file an original and four
copies of each filing. If more than one docket or rulemaking number
appears in the caption of this proceeding, commenters must submit two
additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail). The Commission\'s contractor will receive hand-delivered
or messenger-delivered paper filings for the Commission\'s Secretary at
236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002.

-The filing hours at this location are 8:00 a.m. to 7:00 p.m.

-All hand deliveries must be held together with rubber bands or
fasteners.

-Any envelopes must be disposed of before entering the building.

-Commercial overnight mail (other than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
Heights, MD 20743.

-U.S. Postal Service first-class mail, Express Mail, and Priority Mail
should be addressed to 445 12th Street, S.W., Washington, D.C. 20554.

-All filings must be addressed to the Commission\'s Secretary, Office of
the Secretary, Federal Communications Commission.

Parties shall send one copy of their comments and reply comments to Best
Copy and Printing, Inc., Portals II, 445 12th Street, S.W., Room
CY-B402, Washington, D.C. 20554, (800) 378-3160, e-mail FCC@BCPIWEB.com.

Comments filed in response to this *Public Notice* will be available for
public inspection and copying during business hours in the FCC Reference
Information Center, Portals II, 445 12th Street S.W., Room CY-A257,
Washington, D.C. 20554, and via the Commission\'s Electronic Comment
Filing System (ECFS) by entering the docket number, WT Docket No.
08-165. The comments may also be purchased from Best Copy and Printing,
Inc., telephone (800) 378-3160, facsimile (301) 816-0169, e-mail
FCC@BCPIWEB.com.

Alternate formats of this *Public Notice* (computer diskette, large
print, audio recording, and Braille) are available to persons with
disabilities by contacting Brian Millin at (202) 418-7426 (voice), (202)
418-7365 (TTY), or send an e-mail to access@fcc.gov.

Wireless Telecommunications Bureau contact: Michael Rowan at
Michael.Rowan@fcc.gov or (202) 418-1883.

Action by the Acting Chief, Wireless Telecommunications Bureau.

\- FCC -

[^1]: In the Matter of Petition for Declaratory Ruling to Clarify
    Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review
    and to Preempt under Section 253 State and Local Ordinances that
    Classify All Wireless Siting Proposals as Requiring a Variance,
    *Petition for Declaratory Ruling*, WT Docket No. 08-165, filed July
    11, 2008 (Petition).

[^2]: 47 U.S.C. § 253(a).

[^3]: Petition at iii.

[^4]: 47 U.S.C. § 332(c)(7)(B)(i)(II).

[^5]: *See* 47 C.F.R. §§ 1.1200(a), 1.1206.

[^6]: *See* Commission Emphasizes the Public's Responsibilities in
    Permit-But-Disclose Proceedings, *Public Notice*, 15 FCC Rcd 19945
    (2000).

[^7]: *See* 47 C.F.R. § 1.1206(b)(2). Other rules pertaining to oral and
    written presentations are also set forth in Section 1.1206(b). *See*
    47 C.F.R. § 1.1206(b).