Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules 46241

1This 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.

2 Fifth Report and Order, supra at ¶¶ 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).

factual determination applicable only to

the area in question, based on

preexisting facts. Under these

circumstances, the administrative

requirements discussed above might not

apply. However, EPA is taking this

approach under consideration, it is not

today proposing this approach.

List of Subjects in 40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Ozone, Wilderness areas.

Dated: August 25, 1997.

Jerry Clifford,

Acting Regional Administrator.

[FR Doc. 97–23236 Filed 8–29–97; 8:45 am]

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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.

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’’).1

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 2006.2

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
46242 Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules

3See 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).

4H.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.’’)

5Hines v. Davidowitz, 312 U.S. 52, 68 (1941).

6City 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.

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 ¶ 5.

9 Fifth Report and Order, supra at ¶ 91.

10Arecibo 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.)

11Notice 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).

12E.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).

13But see paragraph 21, infra.

14See, e.g., 47 CFR § 25.104.

could preclude the success of over-theair 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.3 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.4 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 5 or where the

Commission finds preemption is

necessary to achieve its purposes within

the scope of its delegated authority.6

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.7 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.8

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.9 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.’’ 10 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.’’ 11 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.12

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.13

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.14

11. The Commission seeks a detailed

record of the nature and scope of
Federal Register / Vol. 62, No. 169 / Tuesday, September 2, 1997 / Proposed Rules 46243

15The 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, RaleighDurham, and Cincinnati.

1Amendment of the Commission’s Rules

Concerning Maritime Communications, Second

Further Notice of Proposed Rule Making, PR Docket

No. 92–257, FCC 97–217 (released June 26, 1996)

(Second Further NPRM); see Maritime

Communications, 62 FR 37533 (July 14, 1997).

2United States Coast Guard Petition for

Rulemaking to Amend Part 80 of the FCC Rules to

Designate Maritime Channels and Allow Operation

of Automatic Identification Systems and Related

Safety Systems (filed August 4, 1997).

3Second Further NPRM at ¶132.

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.15 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 buildout 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?

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]

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47 CFR Part 80

[PR Docket No. 92–257; DA 97–1806]

Maritime Communications

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule; extension of

comment period.

SUMMARY: On August 21, 1997, the

Public Safety and Private Wireless

Division adopted an order extending the

comment and reply comment period in

PR Docket No. 92–257. The extension

was requested to allow interested

parties more time to evaluate the issues

and develop an industry consensus. The

comment period is extended from

August 25, 1997 to September 15, 1997,

and the reply comment period is

extended from September 9, 1997 to

September 30, 1997.

DATES: Comments are to be filed on or

before September 15, 1997, and reply

comments on or before September 30,

1997.

ADDRESSES: Federal Communications

Commission, 1919 M St., N.W.,

Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Scot

Stone, Wireless Telecommunications

Bureau, Public Safety & Private Wireless

Division, (202) 418–0680) or via E-mail

to ‘‘sstone@fcc.gov’’.

SUPPLEMENTARY INFORMATION:

Adopted: August 21, 1997.

Released: August 21, 1997.

1. On August 15, 1997, Ross

Engineering (Ross) requested that the

time for filing comments in response to

the Second Further Notice of Proposed

Rule Making (Second Further NPRM) in

the above-captioned proceeding

released by the Commission on June 26,

1997,1 be extended from August 25,

1997, to September 15, 1997, and that

the time for filing reply comments be

extended from September 9, 1997 to

October 16, 1997.

2. Ross states that it needs additional

time to submit comments in order to

fully address the substantive effect of

the issues raised in the Second Further

NPRM, consider the impact of a related

Petition for Rulemaking filed by the

United States Coast Guard,2 and

complete the work of coordinating and

developing an industry consensus on

these issues. Ross also states that Mobile

Marine Radio, MARITEL, and the Coast

Guard concur in its request for an

extension of time.

3. The Commission does not routinely

grant extensions of time. In this

instance, however, it is desirable that

the record be as complete as possible

and that it include the views of as large

a cross section of the maritime radio

community as possible. This interest

must be balanced, however, against the

fact that the filing and process freeze

enacted to allow the development of

new rules for maritime services expires

on March 17, 1998, and the

Commission’s intent to adopt final rules

before the freeze expires.3 We believe an

extension of twenty-one (21) days to be

adequate to give the maritime

community sufficient time to respond to

the above-captioned proceeding. We

therefore extend the period of time for

filing comments to and including

September 15, 1997, and we extend the

period for filing reply comments to and

including September 30, 1997.

4. It Is Hereby Ordered that pursuant

to § 1.46 of the Commission’s Rules, 47

CFR § 1.46, Ross’s request to extend the

deadline for filing comments and reply

comments in this proceeding is granted

in part to the extent indicated herein,

and otherwise denied.

Federal Communications Commission.

Lisa M. Higginbotham,

Acting Chief, Public Safety and Private

Wireless Division, Wireless

Telecommunications Bureau.

[FR Doc. 97–23191 Filed 8–29–97; 8:45 am]

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