Federal Register / Vol. 62, No. 156 / Wednesday, August 13, 1997 / Notices 43329

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

DATES: Written comments should be

submitted on or before September 12,

1997. If you anticipate that you will be

submitting comments, but find it

difficult to do so within the period of

time allowed by this notice, you should

advise the contact listed below as soon

as possible.

ADDRESSES: Direct all comments to Judy

Boley, Federal Communications

Commission, Room 234, 1919 M St.,

N.W., Washington, DC 20554 or via

internet to jboley@fcc.gov.

FOR FURTHER INFORMATION CONTACT: For

additional information or copies of the

information collection(s) contact Judy

Boley at 202–418–0214 or via internet at

jboley@fcc.gov.

SUPPLEMENTARY INFORMATION:

OMB Approval Number: 3060–0774.

Title: Federal-State Joint Board on

Universal Service, CC Docket No. 96–45.

Type of Review: Extension of a

currently approved collection.

Respondents: Individuals or

households; business or other for-profit;

not-for-profit institutions; state or local

or tribal government.

Number of Respondents: 5,565,451.

Estimated Time Per Response: 3.1

hours (avg.).

Cost to Respondents: N/A.

Total Annual Burden: 1,784,220

hours.

Needs and Uses: Congress has

directed the Commission to implement

a new set of universal service support

mechanisms that are explicit and

sufficient to advance the universal

service principles enumerated in

Section 254 of the Telecommunications

Act of 1996 and such other principles as

the Commission believes are necessary

and appropriate for the protection of the

public interest, convenience and

necessity, and are consistent with the

Act.

In the Report and Order, the

Commission promulgates the rules and

requirements to preserve and advance

universal service. The collections are

necessary to implement Section 254.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–21367 Filed 8–12–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

[FCC 97–264]

Supplemental Pleading Cycle

Established for Comments on Petition

for Declaratory Ruling of the Cellular

Telecommunications Industry

Association

Released: July 28, 1997.

On December 16, 1996, the Cellular

Telecommunications Industry

Association (CTIA) filed a Petition for

Declaratory Ruling (‘‘CTIA Petition’’)

requesting that the Commission preempt

moratoria imposed by state and local

governments on the siting of

telecommunications facilities. On

December 18, 1996, the Wireless

Telecommunications Bureau issued a

public notice, 62 FR 04047 (January 28,

1997), seeking comment on the CTIA

Petition. CTIA and the supporting

commenters contend that the

Commission has the jurisdiction under

Section 253(a) and 332(c)(3) of the

Communications Act to preempt local

siting moratoria because such moratoria

are not individual land use ‘‘decisions’’

or ‘‘disputes,’’ which Congress has

stated are to be reviewed by the courts

under Section 332(c)(7) of the

Communications Act, but rather are

blanket ordinances that act as barriers to

entry.

Following the submission of the

comments on the CTIA Petition,

representatives from CTIA and four

wireless companies made ex parte

presentations in which they raised

additional issues and arguments. In the

ex parte presentations, the

representatives recommended that the

Commission adopt guidelines for local

moratoria. Specifically, they asked that

we find that:

(1) All siting moratoria that exceed 90

days (current and prospective) are

invalid and preempted as impermissible

entry regulation of Commercial Mobile

Radio Services (CMRS).

(2) Moratoria of open-ended duration

constitute per se violations of Sections

253(a) and 332(c)(3) of the

Communications Act.

(3) Moratoria that preclude the filing

and processing of applications

constitute per se violations.

(4) Moratoria that discriminate against

new CMRS providers by allowing

certain CMRS licensees to build and

modify facilities while new entrants are

precluded from deploying services

should be declared per se invalid entry

regulation.

(5) Moratoria based directly or

indirectly on radiofrequency (RF)

emissions and related health concerns

should be per se preempted.

The Commission also received

numerous comments and other ex parte

filings arguing that the Commission

does not have the jurisdiction to

preempt state and local siting moratoria.

Most recently, on July 15, 1997, the

Commission’s Local and State

Government Advisory Committee

(LSGAC) submitted an ex parte letter in

which it argued that Congress had made

clear its intent to protect state and local

authority over the siting of personal

wireless service facilities from

interference by the Commission. LSGAC

argued that neither Section 332(c)(3)(A)

nor Section 253 of the Communications

Act govern the adoption of siting

moratoria by local governments. LSGAC

contends that Section 332(c)(7) of the

Communications Act provides that it is

the only section of the Act that affects

local land use authority over personal

wireless service facilities and that

Section 332(c)(7) reserves to courts of

competent jurisdiction the settlement of

local zoning disputes.

Based on our review of the record

received in response to the CTIA

Petition and the subsequent ex parte

filings, we tentatively conclude that,

pursuant to Sections 253(d) and

332(c)(3) of the Communications Act,

we have the authority to consider

whether local facility siting moratoria

may prohibit or have the effect of

prohibiting the ability of wireless

service providers to offer service in

violation of Section 253(a) or whether

moratoria constitute local regulation of

CMRS entry prohibited by Section

332(c)(3). We recognize that, pursuant to

Section 332(c)(7)(B)(v), parties adversely

affected by decisions regarding the

placement, construction, and

modification of personal wireless

service facilities that are inconsistent

with the limitations set forth in Sections

332(c)(7)(B)(i)-(iii) are directed to seek

relief from a ‘‘court of competent

jurisdiction.’’ We believe that Section

332(c)(7)(B)(v) does not, however, limit

our authority to review local facility

siting moratoria which may constitute

entry barriers under Sections 253(d) or

entry regulations under 332(c)(3). In this

regard, certain moratoria, especially

moratoria of unlimited duration, may

constitute impermissible CMRS entry

regulation or may prohibit or have the

effect of prohibiting CMRS entry into a

local marketplace. Accordingly, to the

extent that moratoria of unlimited or

unspecified duration may constitute

barriers to the provision of

telecommunications services, we

believe that we have the jurisdiction to

preclude such moratoria under Section
43330 Federal Register / Vol. 62, No. 156 / Wednesday, August 13, 1997 / Notices

253(d) of the Communications Act and

to the extent that such moratoria may

constitute prohibited CMRS entry

regulation, we believe that we have the

jurisdiction to preclude them under

Section 332(c)(3). In this regard, we

tentatively conclude that moratoria that

do not specify any fixed length of

duration are not ‘‘decisions’’ regarding

the placement, construction and

modification of personal wireless

facilities which, pursuant to Section

332(c)(7)(A) of the Communications Act,

are subject to review by the courts. At

the same time, we recognize that a

moratorium of a fixed duration, which

permits local officials a reasonable

period of time to study and develop a

process for handling wireless siting

requests may be a legitimate exercise of

local land use authority which may

benefit all parties. Therefore, we

tentatively conclude that Sections

253(d) and 332(c)(3) do not preclude all

local facilities siting moratoria and that

some moratoria of a relatively short and

fixed duration may serve the public

interest.

Through this supplemental public

notice, we tentatively conclude that we

should preclude local facilities siting

moratoria of unlimited or unspecified

duration as impermissible CMRS entry

regulation in violation of Section

332(c)(3) or barriers to entry under

Section 253(a) and seek comment on

this tentative conclusion. We also seek

comment on whether moratoria of a

specified duration, but which exceed a

certain length of time, may also

constitute impermissible barriers to

entry or CMRS entry regulation. If so, at

what length of time do moratoria

become barriers to entry? We note that

CTIA and the supporting parties have

argued that moratoria should not exceed

90 days. In Sprint Spectrum, L.P. v. City

of Medina, a federal district court found

that a city’s six month moratorium on

the issuance of new special use permits

for wireless communications facilities

did not violate Section 332(c)(3) or

332(c)(7)(A) of the Communications Act.

We seek comment as to what constitutes

a reasonable period of time to permit

local land use authorities to organize

their siting efforts and analyze the

situation. We request that all

commenters supporting a specific length

of time provide a detailed justification

for that length of time, and we request

that state and local governments

advocating moratoria of a certain length

of time include evidence as to the length

of time it has taken historically to

develop a process for handling wireless

siting requests. We seek to determine

also whether such limits should be

applied to all existing moratoria or only

to moratoria that are adopted in the

future.

In addition, we seek comment as to

whether moratoria that are imposed

only against the siting of wireless

facilities of new CMRS entrants but that

permit existing CMRS operators to

construct or modify facilities are

consistent with Sections 253(a) and

332(c)(3) of the Communications Act.

We seek to determine whether such

disparate treatment constitutes

discrimination against new CMRS

providers and is, therefore, invalid entry

regulation, or prohibits or has the effect

of prohibiting entry.

Finally, we tentatively conclude that

moratoria that would otherwise comply

with the above-outlined limitations may

violate Section 332(c)(7)(B)(iv) of the

Communications Act if they are based

upon concerns regarding the

environmental effects of RF emissions.

We seek comment on this tentative

conclusion.

Interested parties should file

comments on the issues raised in this

Public Notice on or before September

11, 1997, and should file reply

comments on or before September 26,

1997. Comments and reply comments

must be filed with the Secretary, FCC

1919 M Street, N.W., Washington, DC

20554. One copy of comments and reply

comments should be sent to Shaun A.

Maher, Esq., Policy & Rules Branch,

Commercial Wireless Division, Wireless

Telecommunications Bureau, Seventh

Floor—Room 93, 2100 M Street, N.W.,

Washington, DC 20554. One copy

should also be sent to the Commission’s

contractor for public service records

duplication, International Transcription

Service, Inc. (ITS), 1231 20th Street,

N.W., Washington, DC 20036. Parties

filing comments in this non-docketed

proceeding should include the internal

reference numbers, DA 96–2140 and

FCC 97–264, on their pleadings.

Parties are encouraged to submit

comments and reply comments on

diskette. Such diskette submissions

would be in addition to and not a

substitute for the formal filing

requirements presented above. Parties

submitting diskettes should submit

them to Shaun A. Maher, at the aboveoutlined address. Such a submission

should be on a 3.5 inch diskette

formatted in an IBM compatible form

using Word Perfect 5.1 for Windows

software. The diskette should be

submitted in ‘‘read only’’ mode, and

should be clearly labelled with the

party’s name, proceeding, type of

pleading (comment or reply comment)

and date of submission.

The full text of all comments and

reply comments will be available for

inspection and duplication during

regular business hours in the

Commercial Wireless Division Public

Reference Room, 2025 M Street, N.W.,

Room 5608, Washington, D.C. 20554.

Copies may also be obtained from

International Transcription Service, Inc.

(ITS), 1231 20th Street, N.W.,

Washington, D.C. 20036, (202) 857–

3800.

We will continue to treat this

proceeding as permit-but-disclose for

purposes of the Commission’s ex parte

rules. See generally 47 CFR §§ 1.1200–

1.1216.

For further information, contact

Shaun A. Maher of the Wireless

Telecommunications Bureau, at 202–

418–7240 (email: smaher@fcc.gov).

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–21372 Filed 8–12–97; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

FEMA Invites State, Tribal, and Local

Government Representation in the

Radiological Emergency Preparedness

(REP) Program Strategic Review

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Notice.

SUMMARY: Under the authority of the

Unfunded Mandates Reform Act of 1995

and in order to gather information

pursuant to the REP Program strategic

review, FEMA has sent out letters

inviting States and Indian Tribal nations

impacted by the REP Program to

designate representatives to assist

FEMA in its REP Program strategic

review. The designated representatives

may be asked to serve on issue teams,

contribute ideas toward refining

FEMA’s exercise evaluation

methodology, participate in a focus

group discussion that addresses new

REP Program recommendations, or

participate in conference calls.

FOR FURTHER INFORMATION CONTACT: D.

Anne Martin, Deputy Director, Exercises

Division, Preparedness, Training and

Exercises Directorate, Federal

Emergency Management Agency, 500 C

Street SW., Washington, DC 20472,

(202) 646–2738.