[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Proposed Rules]
[Pages 46241-46243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23190]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 97-296]


Preemption of State and Local Zoning and Land Use Restrictions on 
the Siting, Placement and Construction of Broadcast Transmission 
Facilities

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission issues this Notice of Proposed Rule Making to 
consider whether and in what circumstances to preempt certain state and 
local zoning and land use ordinances which present an obstacle to the 
rapid implementation of digital television (``DTV'') service. Having 
found that the accelerated roll-out is essential to the success of 
over-the-air DTV, the Commission set out an accelerated construction 
schedule for DTV facilities. To the extent that state and local 
restrictions stand as an obstacle to the achievement of its purposes 
the Commission has the authority to preempt state or local law. In this 
Notice of Proposed Rule Making, the Commission seeks comment on whether 
and in what circumstances it should preempt state or local action or 
inaction that interferes with the rapid roll-out of DTV.

DATES: Comments are due on or before October 30, 1997 and reply 
comments are due on or before December 1, 1997.

FOR FURTHER INFORMATION CONTACT: Keith Larson, Assistant Bureau Chief 
for Engineering or Susanna Zwerling, Policy and Rules Division, Mass 
Media Bureau (202) 418-2140.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making, FCC 97-296 adopted August 18, 1997 and 
released August 19, 1997. The full text of this Commission Notice is 
available for inspection and copying during normal business hours in 
the FCC Dockets Branch (Room 239), 1919 M Street NW, Washington, DC. 
The complete text of this Notice may also be purchased from the 
Commission's copy contractor, International Transcription Services 
(202) 857-3800 2100 M Street, NW., Suite 140, Washington, DC 20037.

Synopsis of Notice

I. Introduction

    1. The Commission is undertaking this rule making to consider 
whether and in what circumstances to preempt certain state and local 
zoning and land use ordinances that present obstacles to the rapid 
implementation of DTV. Such ordinances may inhibit the resiting of 
antennas made necessary by the implementation of DTV. This issue was 
brought before the Commission in a ``Petition for Further Notice of 
Proposed Rule Making'' filed jointly by the National Association of 
Broadcasters and the Association for Maximum Service Television 
(``Petitioners'').<SUP>1</SUP>
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    \1\ This petition was filed in the Commission's Digital 
Television proceeding Fifth Report and Order in MM Docket No. 87-
268, FCC 97-116 (April 22, 1997) (Fifth Report and Order), 62 FR 
26966 (May 16, 1997). The Commission will, however, treat the 
Petition as one filed pursuant to 47 CFR 1.401 seeking the 
institution of a new rule making proceeding.
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II. Background

    2. In its Fifth Report and Order in the DTV proceeding, the 
Commission adopted an accelerated schedule for construction of DTV 
transmission facilities. The construction schedule requires affiliates 
of the top four networks to be on the air with digital signals by May 
1, 1999 in the top ten markets and by November 1, 1999 in markets 11-
30. All other commercial stations must construct their DTV facilities 
by May 1, 2002, and noncommercial stations by May 1, 2003. Subject to 
biennial review and statutory exceptions, all stations are to return 
their analog spectrum by 2006.<SUP>2</SUP>
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    \2\ Fifth Report and Order, supra at Paras. 99, 100. See Also 
Balanced Budget Act of 1997 (``BBA''), Pub. L. 105-33, 111 Stat. 251 
(1997) (codified at 47 U.S.C. 309(j)(14) (A)-(B)) (establishing 
statutory target date for return of the analog spectrum and setting 
out exceptions to that deadline).
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    3. The accelerated DTV transition schedule will require extensive 
tower modification and construction. Petitioners state that local 
regulation presents obstacles to this construction schedule in that the 
levels of review required in the administration of such restrictions 
can last several months.
    4. To facilitate compliance with the DTV construction schedule, 
Petitioners ask the Commission to adopt a rule allowing the Commission 
to preempt state and local zoning and other land use regulations to the 
extent they unreasonably delay the DTV roll-out and other ongoing 
broadcast transmission facilities construction. The proposed rule 
provides specific time limits for state and local government action in 
response to requests for approval of the placement, construction or 
modification of broadcast transmission facilities. The Petitioners' 
proposed rule would require action within 21 days with respect to 
modifications of existing broadcast transmission facilities where no 
change in location or height is proposed; within 30 days with respect 
to the relocation of an existing broadcast transmission facility from a 
currently approved location to another location within 300 feet, or the 
consolidation of two or more broadcast transmission facilities, or the 
increase in the height of an existing tower; and within 45 days for all 
other requests. Failure to act within these time limits would cause the 
request to be deemed granted. The Petitioners propose that a 
broadcaster receiving an adverse decision could, within 30 days of the 
decision, petition the Commission for a declaratory ruling on which the 
Commission, in turn, would have 30 days in which to act. The 
Petitioners' proposed rule would remove from local consideration (1) 
regulations based on the environmental or health effects of radio 
frequency (``RF'') emissions; and (2) interference with other 
telecommunications signals and consumer electronics devices to the 
extent that the facility complies with Commission regulations. It would 
also remove from local consideration regulations concerning tower 
marking and lighting provided that the facility complies with 
applicable Commission or Federal Aviation Administration regulations. 
The Petitioners' proposed rule would preempt all state and local 
regulations that impair the ability of licensed broadcasters construct 
or modify their facilities unless the state or local authority can 
demonstrate that the regulation is related to health or safety 
objectives.

III. Discussion

    5. In its Fifth Report and Order the Commission set out the 
rationale for an accelerated roll-out of DTV. The Commission found that 
first, absent a speedy roll-out, other DTV services might achieve 
levels of penetration that

[[Page 46242]]

could preclude the success of over-the-air DTV; second, an expedited 
construction schedule would promote DTV's competitive strength 
internationally and spur the American economy; third, an accelerated 
schedule would offset any individual broadcaster's disincentives to 
begin digital transmissions quickly; and finally, a rapid roll-out 
would ensure the swift recovery of broadcast spectrum. In order to 
achieve these goals, the Commission instituted an aggressive but 
reasonable construction schedule, aimed at exposing as many homes to 
DTV as early as possible. The Fifth Report and Order acknowledged that 
difficulties in obtaining zoning and other approvals may interfere with 
a broadcaster's ability to meet construction schedule requirements. At 
the same time, the Commission is sensitive to the important state and 
local roles in zoning and land use matters and their longstanding 
interest in the protection and welfare of their citizenry. Given the 
countervailing importance of accelerated construction of DTV 
transmission facilities, however, the Commission seeks to define those 
circumstances in which it may be necessary to preempt state and local 
regulations in order to achieve the benefits of a rapid roll-out of 
DTV.
    6. It is well settled that the Communications Act of 1934, as 
amended (``Communications Act''), comprehensively provides for 
regulation of radio frequency interference and that the FCC has 
exclusive jurisdiction to resolve such questions.<SUP>3</SUP> With 
regard to interference affecting home consumer equipment in particular, 
Congress plainly stated in the 1982 amendments to the Communications 
Act that it intended federal regulation to completely occupy the field 
to the exclusion of local and state governments.<SUP>4</SUP> Thus, a 
rule preempting state and local zoning regulations based on 
electromagnetic interference would simply codify the existing state of 
the law. With respect to other aspects of the proposed rule, the 
Commission has authority to preempt where state or local law stands as 
an obstacle to the accomplishment and execution of the full objectives 
of Congress <SUP>5</SUP> or where the Commission finds preemption is 
necessary to achieve its purposes within the scope of its delegated 
authority.<SUP>6</SUP>
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    \3\ See e.g., 47 U.S.C. 152(a), 301, 303(c), (d), (e), and 
especially (f); Head v. New Mexico Board of Examiners in Optometry, 
374 U.S. 424, 430 n.6 (1963) (the FCC's ``jurisdiction over 
technical matters'' associated with the transmission of broadcast 
signals is clearly exclusive); 960 Radio, Inc., FCC 85-578 (released 
November 4, 1985) (preempts local zoning authority regulation of 
interference caused by an FM station); Mobilecom of New York, Inc., 
2 FCC Rcd 5519 (Com. Car. Bur. 1987).
    \4\ H.R. Report No. 765, 97th Cong. 2d Sess. 33 (1982), 
reprinted in 1982 U.S. Code Cong. & Ad. News 2277 (amendment to 
section 302(a) of Act) (``The Conference substitute is further 
intended to clarify the reservation of exclusive jurisdiction to the 
Federal Communications Commission over matters involving RFI. Such 
matters shall not be regulated by local or state law, nor shall 
radio transmitting be subject to local or state regulation as part 
of any effort to resolve an RFI complaint.'')
    \5\ Hines v. Davidowitz, 312 U.S. 52, 68 (1941).
    \6\ City of New York v. FCC, 486 U.S. 57, 63 (1988). See 
generally Louisiana Public Service Commission v. FCC, 476 U.S. 355, 
368-69 (1986) and cases cited therein.
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    7. Congress explicitly indicated its objective of a speedy recovery 
of spectrum in the 1996 Telecommunications Act, requiring the 
Commission to condition the grant of a DTV license on the return of 
either that license or the original license for reallocation or 
reassignment.<SUP>7</SUP> As indicated above, the Commission found that 
a speedy conversion would increase the likelihood of success of the DTV 
roll-out and allow for the rapid recovery of spectrum, while a slower 
conversion would undermine the success of DTV, and thereby impede the 
recovery of spectrum. The Commission also determined that the prompt, 
broad availability of DTV to the American public was an important 
public interest goal.<SUP>8</SUP>
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    \7\ 47 U.S.C. 336(c). See generally 47 U.S.C. 151 (purpose of 
the Act includes ``to make available, so far as possible . . . a 
rapid, efficient Nation-wide and world-wide radio communication 
service with adequate facilities''); 47 U.S.C. 157 (``It shall be 
the policy of the United States to encourage the provision of new 
technologies and services to the public.'').
    \8\ Fifth Report and Order, supra at para. 5.
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    8. Local zoning and land use decisions that delay construction of 
the DTV transmission facilities may make it impossible for a licensee 
to meet the DTV construction schedule.<SUP>9</SUP> To the extent that 
state and local ordinances make it impossible for broadcasters to meet 
the construction schedule and provide DTV service to the public, 
important Congressional and FCC objectives regarding prompt 
availability of this service to the public and prompt recovery of 
spectrum would be frustrated. At the same time, the Commission is 
sensitive to the rights of states and localities to protect the 
legitimate interests of their citizens and does not seek to 
unnecessarily infringe these rights. The Commission recognizes its 
obligation to ``reach a fair accommodation between federal and 
nonfederal interests.'' <SUP>10</SUP> Thus, it is incumbent upon the 
Commission not to ``unduly interfere with the legitimate affairs of 
local governments including certain health, safety and aesthetic 
regulations, when they do not frustrate federal objectives.'' 
<SUP>11</SUP> Historically the Commission has sought to avoid becoming 
unnecessarily involved in local zoning disputes regarding tower 
placement, however, where such ordinances have inhibited the 
implementation of Congressional or FCC objectives, the Commission has 
adopted rules preempting local zoning ordinances.<SUP>12</SUP>
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    \9\ Fifth Report and Order, supra at para. 91.
    \10\ Arecibo Radio Corporation, 101 FCC 2d 545, 550 (1985); see 
City of New York v. FCC, 486 U.S. 57, 64 (1988) (Commission exercise 
of preemption power must represent reasonable accommodation of 
conflicting policies.)
    \11\ Notice of Proposed Rule Making, In the Matter of Preemption 
of Local Zoning Regulations of Receive-Only Satellite Earth 
Stations, CC Docket No. 85-89, 50 FR 13986 (April 9, 1985). See also 
Preemption of Local Zoning Regulations of Satellite Earth Stations, 
IB Docket No. 95-59, 61 FR 10896 (March 18, 1996); Preemption of 
Local Zoning Regulations of Receive-Only Satellite Earth Stations, 
50 FR 13986, 13989; Amendment of Part 73 of the Commission's Rules 
to More Effectively Resolve Broadcast Blanketing Interference, 11 
FCC Rcd 4750, 4754 (1996) (localities best situated to resolve local 
land use and related aesthetic questions).
    \12\ E.g., Preemption of Local Zoning or Other Regulation of 
Receive-Only Satellite Earth Stations, CC Docket No. 85-87, 59 RR 2d 
1073 (released February 5, 1986); Federal Preemption of State and 
Local Regulations Pertaining to Amateur Radio Facilities, PRB-1, 50 
FR 38813 (September 25, 1985).
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    9. The Petitioners' proposed rule is not limited to DTV-related 
construction, including the involuntary relocation of FM antennas now 
collocated on television towers. It is less clear to the Commission 
that preemption will be needed where broadcasters do not face 
exigencies such as DTV construction deadlines. The Commission seeks 
comment as to whether a preemption rule should cover the construction 
of all broadcast facilities or be limited to DTV construction and to FM 
radio station transmission facility relocations resulting from such 
construction.<SUP>13</SUP>
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    \13\ But see paragraph 21, infra.
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IV. Request for Comments

    10. The Commission generally invites comment on the Petitioners' 
proposals for the preemption of state and local law regulations on the 
siting of broadcast transmission facilities and on the Petitioners' 
proposed rule. Alternatively, the Commission seeks comment on whether 
any rule adopted should focus on actions state and local governments 
would be preempted from taking or what state or local authority would 
be preempted by failure to act within a specified time 
period.<SUP>14</SUP>
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    \14\ See, e.g., 47 CFR Sec. 25.104.
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    11. The Commission seeks a detailed record of the nature and scope 
of

[[Page 46243]]

broadcast tower siting issues, including delays and related matters 
encountered by broadcasters, tower owners and local government 
officials. The Commission is particularly interested in receiving 
information about experiences related to time constraints, delays or 
other obstacles encountered by broadcasters and tower owners in the top 
30 markets.<SUP>15</SUP> The Commission is also interested in the 
extent to which commenters believe such difficulties are representative 
of difficulties that will be faced in the context of DTV build-out and 
whether existing laws, ordinances and procedures are likely to impede 
adherence to our accelerated DTV build-out schedule. The Commission 
also seeks comment on whether it should preempt state and local 
restrictions regarding RF emissions from broadcast transmission 
facilities or local regulation intended for aesthetic purposes?
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    \15\ The top thirty television markets, as ranked by Nielsen 
Media Research as of April 3, 1997 are: New York, Los Angeles, 
Chicago, Philadelphia, San Francisco, Boston, Washington, D.C., 
Dallas-Fort Worth, Detroit, Atlanta, Houston, Seattle-Tacoma, 
Cleveland, Minneapolis-St. Paul, Tampa-St. Petersburg, Miami, 
Phoenix, Denver, Pittsburgh, Sacramento-Stockton, St. Louis, 
Orlando-Daytona Beach, Baltimore, Portland, OR, Indianapolis, San 
Diego, Hartford-New Haven, Charlotte, Raleigh-Durham, and 
Cincinnati.
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    12. The Commission also seeks comment on the procedural framework 
proposed by Petitioners. Specifically, should the Commission preempt 
state and local government authority where they fail to act within 
certain time periods? The Commission asks states and localities to 
comment on their current procedures, their need to use these 
procedures, the possibility of using expedited procedures to meet the 
DTV construction schedule, and the nature of such expedited procedures. 
Is there an appropriate role for the Commission in resolving disputes 
between localities and licensees with respect to tower siting issues?

List of Subjects in 47 CFR Part 1

    Television broadcasting, Radio broadcasting.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-23190 Filed 8-29-97; 8:45 am]
BILLING CODE 6712-01-P