48034 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules

provide how the above demonstration

will be made nor the criteria for the

demonstration. Section 114.5(a)(1)

allows registered farm vehicles used

primarily on a farm or ranch to remove

or make inoperable the farm vehicles air

pollution control system or device used

to control emissions from the farm

vehicle. This exemption is contrary to

section 203(a)(3)(A) of the Act and EPA

tampering prohibition as outlined in

Memorandum No. 1A. Section 114.5(c)

allows exclusion from tampering laws

by petition to state for danger to person

or property. The EPA has never

recognized any circumstances that merit

removal of a catalytic converter or other

emissions controls because of a fire

hazard or other problem. Again, this is

contrary to the Act and EPA tampering

prohibition. In addition, section

114.1(b)(3) references a deleted section

and section 114.1(e) allows dispensing

of leaded gasoline if properly labeled.

The Act banned the dispensing of

leaded gasoline on January 1, 1996.

III. Proposed Action

The EPA is proposing disapproval of

the State submitted revisions received

on February 21, 1989, September 20,

1990, and July 13, 1993, for Regulation

IV, 30 TAC Chapter 114, sections 114.1

and 114.5. The EPA has evaluated the

submitted rules and has determined that

they are not consistent with the Clean

Air Act, and EPA tampering prohibition.

The Regional office, with EPA’s Office

of Mobile Sources has initiated efforts to

help ensure that this action is consistent

with the Act and Memo 1A, and will not

interfere with any applicable

requirement concerning attainment or

any other applicable requirement of the

Act. These revisions are not required by

the Act. Therefore, this proposed

disapproval action does not impose

sanctions for failure to meet Act

requirements.

The EPA is soliciting public

comments on the proposed action

discussed in this document or on other

relevant matters. These comments will

be considered before taking final action.

Interested parties may participate in the

Federal rule making procedure by

submitting written comments to the

EPA Regional office listed in the

ADDRESSES section of this document.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

has exempted this regulatory action

from Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. See 5 U.S.C.

603 and 604. Alternatively, EPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

The EPA’s disapproval of the State

request under section 110 and

subchapter I, part D of the Act does not

affect any existing requirements

applicable to small entities. Any

preexisting Federal requirements remain

in place after this disapproval. Federal

disapproval of the State submittal does

not affect its State-enforceability.

Moreover, EPA’s disapproval of the

submittal does not impose any new

Federal requirements. Therefore, EPA

certifies that this disapproval action

does not have a significant impact on a

substantial number of small entities

because it does not remove existing

requirements and impose any new

Federal requirements.

C. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

The EPA has determined that the

disapproval action proposed does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal disapproval

action imposes no new requirements.

Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: August 11, 1997.

Jerry Clifford,

Acting Regional Administrator.

[FR Doc. 97–24242 Filed 9–11–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[WT Docket No. 97–192; FCC 97–303]

Procedures for Reviewing Requests

for Relief From State and Local

Regulations Pursuant to Section

332(c)(7)(B)(v) of the Communications

Act of 1934

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: This Notice of Proposed

Rulemaking (NPRM) in WT Docket No.

97–192, opens a new proceeding to

establish procedures for filing and

reviewing requests for relief from state

or local regulations based directly or

indirectly on the environmental effects

of RF emissions.

DATES: Comments are due October 9,

1997. Reply comments are due October

24, 1997.

ADDRESSES: Office of the Secretary,

Federal Communications Commission,

Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Shaun A. Maher, Policy and Rules

Branch, Commercial Wireless Division,

Wireless Telecommunications Bureau,

Federal Communications Commission,

(202) 418–7240.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s NPRM,

WT Docket 97–192, FCC 97–303,

adopted August 25, 1997, and released

August 25, 1997. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, N.W.,

Washington, D.C., and also may be
Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules 48035

purchased from the Commission’s

duplication contractor, International

Transcription Service, (202) 857–3800,

2100 M Street, N.W., Suite 140,

Washington, D.C. 20037.

Summary of the Notice of Proposed

Rulemaking

I. Definitional Issues

1. In this proceeding, we seek

comment on proposed 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 on the

placement, construction or modification

of personal wireless service facilities

based either directly or indirectly on the

environmental effects of RF emissions.

As the siting of personal wireless

facilities expands and numerous new

personal wireless service providers seek

to construct their facilities, we

anticipate being called upon more

frequently to review petitions alleging

that a state or local government has

acted or failed to act in a manner that

is inconsistent with section 332(c)(7)(B)

(iv)–(v). Therefore, we believe it is

appropriate to initiate a rulemaking

proceeding to seek comment on the

procedures we should adopt for

reviewing section 332(c)(7)(B) (iv)–(v)

petitions.

2. On August 1, 1996, we issued our

Report and Order in ET Docket No. 93–

62, 61 FR 41006, August 7, 1996,

wherein we revised our RF emissions

guidelines in response to Congress’

mandate in section 704(b) of the

Telecommunications Act. In the Report

and Order, we first considered the

implementation of section

332(c)(7)(B)(iv) when we sought to

determine the definition of the term

‘‘personal wireless service facilities.’’

Congress specifically defined this term

in section 332(c)(7)(C)(i) of the

Communications Act to mean:

‘‘commercial mobile services,

unlicensed wireless services, and

common carrier wireless exchange

access services.’’ This section does not

provide specific authority for the

Commission to preempt state or local

regulations relating to RF emissions of

communications services other than

those specifically defined in the statute.

Therefore, we declined to consider the

preemption of state and local

regulations relating to RF emissions

involving broadcast or other

communications facilities.

3. The Electromagnetic Energy

Association filed a petition for

reconsideration of our Report and Order

requesting that a broader RF preemption

policy be adopted for all services. The

Second Memorandum Opinion and

Order in ET Docket No. 93–62, declined

to take that approach or to consider

granting relief from state and local

regulations relating to RF emissions for

facilities other than those of ‘‘personal

wireless services’’ as set forth in section

332(c)(7)(B)(iv) of the Communications

Act. Congress provided a clear

definition of this term in section

332(c)(7)(C)(i) of the Communications

Act, and we find that definition is

appropriate when determining whether

to consider a request for relief filed

under section 332(c)(7)(B)(v) of the

Communications Act.

4. As a preliminary matter, before

considering procedures to review

requests for relief under section

332(c)(7)(B)(v) of the Communications

Act, we seek comment concerning the

definition of certain terms contained in

this section. For example, Congress did

not define the terms ‘‘final action’’ or

‘‘failure to act’’ as they appear in section

332(c)(7)(B)(v) of the Communications

Act. In the Conference Report, however,

‘‘final action’’ is defined as final

administrative action at the state or

local government level so that a party

can commence action under section

332(c)(7)(B)(v) rather than waiting for

the exhaustion of any independent

remedy otherwise required. We

understand this to mean that, for

example, a wireless provider could seek

relief from the Commission from an

adverse action of a local zoning board or

commission while its independent

appeal of that denial is pending before

a local zoning board of appeals. We

propose to adopt this definition of ‘‘final

action’’ for the purpose of determining

whether a state or local regulation is

ripe for review under section

332(c)(7)(B)(v) and we seek comment on

this definition.

5. In addition, while Congress

provided no specific definition of the

term ‘‘failure to act,’’ under section

332(c)(7)(B)(ii) of the Communications

Act, decisions regarding personal

wireless service facilities siting are to be

rendered in a reasonable period of time,

taking into account the nature and scope

of each request. If a request for

placement of a personal wireless service

facility involves a zoning variance or a

public hearing or comment process, the

Conference Report states that the time

period for rendering a decision will be

the usual period under such

circumstances. Congress also stated that

it did not intend to confer preferential

treatment upon the personal wireless

service industry in the processing of

requests, or to subject that industry’s

requests to anything but the generally

applicable time frames for zoning

decisions. Therefore, we propose to

determine whether a state or local

government has ‘‘failed to act’’ on a

case-by-case basis taking into account

various factors including how state and

local governments typically process

other facility siting requests and other

RF-related actions by these

governments. We seek comment on the

average length of time it takes to issue

various types of siting permits, such as

building permits, special or conditional

use permits, and zoning variances and

whether additional time is needed when

such permits are subject to a formal

hearing.

6. Furthermore, we seek comment on

whether the Commission should grant

relief from a final action or failure to act

based only partially on the

environmental effects of RF emissions.

We believe that state and local

regulations do not have to be based

entirely on the environmental effects of

RF emissions in order for decisions to

be reviewed by the Commission. The

Conference Report stated that, in order

to be reviewed pursuant to section

337(c)(7)(B)(v) of the Communications

Act, such regulations may be based

either directly or indirectly on the

environmental effects of RF emissions.

However, the Conference Report did not

define the term ‘‘indirectly.’’ We seek

comment as to how we should define

this term. We propose to examine such

determinations on a case-by-case basis

and to preempt, where applicable, only

that portion of an action or failure to act

that is based on RF emissions and to

permit the adversely-affected party to

seek relief from the remainder of the

state or local regulation for which the

Commission does not have authority to

grant relief from the appropriate federal

or state court. We may act in an

advisory capacity in those areas where

the Commission does not have specific

preemption authority and provide the

court with our expert opinion, as

requested by the court or parties.

7. We tentatively conclude that we

have the authority to review state and

local regulations that appear to be based

upon RF concerns but for which no

formal justification is provided. For

example, in response to the CTIA Letter,

the WTB considered a hypothetical case

where a county denied a wireless

provider’s application for a conditional

use permit. A significant portion of the

record in the hypothetical local

proceeding centered on the

environmental effects of RF emissions.

Although the local government entity

did not refer to these concerns in its

decision denying the permit, it did

reference community opposition which

was largely based upon these concerns.
48036 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules

The WTB advised that, under the

circumstances, the decision’s citation to

community opposition as a ground for

denial suggested that the decision may,

in fact, have been based on

environmental concerns. To the extent

that the evidence in such a hypothetical

case established that the decision was

based either directly or indirectly on

such impermissible considerations and

the evidence did not establish noncompliance with the Commission’s

regulations, the WTB believed that the

decision would apparently be

inconsistent with section

332(c)(7)(B)(iv). In addition, we note

that, pursuant to section 332(c)(7)(B)(iii)

of the Communications Act, state and

local decisions concerning the siting of

personal wireless facilities are to be in

writing and supported by substantial

evidence contained in a written record.

Therefore, we seek comment on our

tentative conclusion to grant relief to

licensees or personal wireless service

facilities from state and local regulations

of personal wireless facilities based

upon concerns of the environmental

effects of RF emissions even if there is

no formal justification provided for the

decision if there is evidence to support

the conclusion that concerns over RF

emissions constituted the basis for the

regulation.

8. Finally, we seek comment on

whether our authority under section

332(c)(7)(B)(v) to preempt state and

local actions that are based on concerns

over RF emissions extends to private

entities’ efforts to limit the placement,

construction, and modification of

personal wireless service facilities. We

recognize that wireless providers,

especially new services such as the

‘‘wireless local loop,’’ may encounter

restrictions by non-governmental

entities, such as homeowner

associations and private land covenants,

that could prove to be an impediment to

their ability to deploy their services. We

seek to determine whether such entities

would fall under the definition of ‘‘state

or local government or any

instrumentality thereof’’ as that term is

used in section 332(c)(7)(B)(v) of the

Communications Act and whether

decisions by private entities should be

subject to Commission review.

II. Demonstration of RF Compliance

9. Section 332(c)(7)(B)(iv) of the

Communications Act states that ‘‘[n]o

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.’’

Neither the text of the Act nor the

legislative history indicates to what

extent localities are permitted to request

that personal wireless service providers

demonstrate compliance with our RF

guidelines. LSGAC argues that Act

preserves the authority of state and local

governments to ensure that personal

wireless service facilities comply with

the Commission’s RF emission

regulations. We recognize that it is

reasonable for state and local

governments to inquire as to whether a

specific personal wireless service

facility will comply with our RF

emissions guidelines. LSGAC contends

that local officials must be able to assure

their constituents that compliance with

the Commission’s RF regulations will be

monitored. LSGAC recommends that the

Commission adopt a mutually

acceptable RF testing and

documentation mechanism that

providers and local authorities may use

to demonstrate compliance with RF

radiation limits. We tentatively agree

with LSGAC’s recommendation,

however, we believe that there should

be some limit as to the type of

information that a state or local

authority may seek from a personal

wireless service provider. The type of

information may vary depending upon

how the personal wireless service

facility is classified under our

environmental rules. Under the

procedural guidelines adopted in the

Report and Order and modified in the

Second Memorandum Opinion and

Order in this proceeding, proposed

wireless facilities may be considered

either: (1) Environmental actions

requiring the submission of an

Environmental Assessment (EA); (2)

actions that do not require such an

assessment but nevertheless require

routine RF emissions evaluation by the

Commission; or (3) actions that are

categorically excluded from routine RF

emissions evaluation based upon their

height above ground level or their low

operating power. Facilities that are

categorically excluded must comply

with the substantive RF emissions

guidelines; however, because they are

extremely unlikely to cause routine

exposure that exceeds the guidelines,

applicants for such facilities are not

required to perform any emissions

evaluation as a condition of license,

unless specifically ordered to do so by

the Commission. Given these

environmental classifications, we seek

comment on two alternative showings

that would be permissible for local and

state governments to request personal

wireless providers submit as part of the

local approval process.

10. Under the first alternative, we

propose a more limited showing. For

personal wireless service facilities that

were categorically excluded from

routine Commission evaluation, state

and local authorities would only be

allowed to request that the personal

wireless provider certify in writing that

its proposed facility will comply with

the Commission’s RF emissions

guidelines. In the case of facilities that

were not categorically excluded, state or

local authorities would be limited to

requesting copies of any and all

documents related to RF emissions

submitted to the Commission as part of

the licensing process. We seek comment

on this limited showing and how a state

or local authority would be able to seek

relief from a licensee that falsely

certifies its facility complies or will

comply with our RF emissions

guidelines.

11. Alternatively, we ask for comment

on whether to adopt a more detailed

showing. We believe, however, that this

alternative can be workable only if we

adopt uniform standards for such a

demonstration that would be regarded

as sufficient by all state and local

governments for demonstrating

compliance with the RF guidelines. We

propose, once again, for facilities that

were not categorically excluded, that

state or local authorities would be

limited to requesting copies of any and

all documents related to RF emissions

submitted to the Commission as part of

the licensing process. For facilities that

were categorically excluded, we propose

that the state and local governments be

permitted to request that the personal

wireless service provider submit a

demonstration of compliance. We ask

for comments on the criteria for such a

demonstration of compliance. We seek

to develop a showing that would impose

a minimal burden on service providers,

while satisfying legitimate state and

local government interests. In addition,

we seek to determine which party

should be required to pay for the

preparation of the demonstration of

compliance. LSGAC contends that local

taxpayers should not bear the costs of

investigations taken by state and local

governments to determine compliance

with the Commission’s RF regulations.

12. While this proceeding is pending,

we believe that it would be beneficial to

personal wireless service providers and

state and local governments for us to

provide some policy guidance as to

what information we believe a carrier

should be obligated to provide to

demonstrate to localities that its

‘‘facilities comply with the
Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules 48037

Commission’s regulations concerning

such (RF) emissions’’ as stated in

section 332(c)(7)(B)(iv) of the

Communications Act. We therefore are

providing a non-binding policy

statement as to the circumstances in

which we would be less likely to find

such information requests to be

inconsistent with section

332(c)(7)(B)(iv). We believe that such a

statement will provide much needed

guidance to state and local governments

on the issue of RF compliance and

would greatly expedite the siting of

personal wireless service facilities

pending our adoption of final rules

herein. We are concerned that state and

local governments may delay the siting

of facilities based upon concerns about

the effects of RF emissions and a

carrier’s compliance with our RF

guidelines. As the record in the RF

emissions proceeding indicated, several

states have been adopting their own RF

regulations in an effort to resolve these

concerns. As a result of such actions,

wireless facilities that otherwise comply

with federal RF emissions guidelines are

experiencing delays as state and local

officials search for methods to assess

such compliance. Conversely, personal

wireless service providers cite to our RF

rules and conclude that they should not

be required to submit any information

about RF compliance as part of the local

approval process. Therefore, we believe

that providing guidance as to the types

of RF information a state or local

government may request will provide

both sides a much-needed measure of

certainty because state and local

governments would know certain types

of RF information they could request in

this interim period without concern that

their actions would be subsequently

preempted by the Commission.

Similarly, personal wireless service

providers would understand what we

believe is reasonable for state and local

governments to request. 13. We believe that, pending adoption

of final rules, we would not preempt

state and local government requests that

personal wireless service providers

submit, as part of their application to

place, construct, or modify a personal

wireless service facility, the more

detailed demonstration of RF

compliance set forth in our second

alternative above. However, at the

present time, we believe that this level

of information should be the most that

a state or local government should be

permitted to request and we would be

likely to find that information requests

that exceed this level are inconsistent

with section 332(c)(7)(B)(iv) of the

Communications Act. The type of

demonstration that could be requested

by the state or local government would

depend on how the facility was

classified under the Commission’s

environmental categories. For those

facilities that are not categorically

excluded from routine environmental

processing, as set forth in § 1.1306 of the

rules, we would be less likely to

preempt state or local authorities that

simply request copies of all

environmental documents, such as the

Environmental Assessment or

evaluation, that were submitted to the

Commission as part of the licensing

process. For those facilities that were

categorically excluded, we would be

less likely to preempt state and local

authorities that simply request that the

personal wireless service provider

submit a uniform demonstration of

compliance with the Commission’s RF

guidelines. We believe that a uniform

demonstration of compliance should

consist of a written statement signed by

the personal wireless service provider or

its representative and should conform to

our rules on truthfulness of written

statements, subscription and

verification. We believe that the

following information should also be

contained in the uniform demonstration

of RF compliance to be filed for

facilities that were categorically

excluded:

(1) A statement that the proposed or

existing transmitting facility does or will

comply with FCC radio frequency emission

guidelines for both general population/

uncontrolled exposures and occupational/

controlled exposures as defined in the rules.

(2) A statement or explanation as to how

the personal wireless service provider

determined that the transmitting facility will

comply, e.g., by calculational methods, by

computer simulations, by actual field

measurements, etc. Actual values for

predicted exposure should be provided to

further support the statement. An exhaustive

record of all possible exposure locations is

not necessary, but, for example, the ‘‘worst

case’’ exposure value in an accessible area

could be mentioned as showing that no

exposures would ever be greater than that

level. Reference should be given to the actual

FCC exposure limit or limits relevant for the

particular transmitting site.

(3) An explanation as to what, if any,

restrictions on access to certain areas will be

maintained to ensure compliance with the

public or occupational exposure limits. This

includes control procedures that are

established for workers who may be exposed

as a result of maintenance or other tasks

related to their jobs.

(4) A statement as to whether other

significant transmitting sources are located at

or near the transmitting site, and, if required

by the rules, whether their RF emissions

were considered in determining compliance

at the transmitting site.

14. We stress that the above-outlined

policies concerning the demonstration

of RF compliance are non-binding and

are merely provided as guidance

pending the final outcome of this

proceeding. Should a state or local

government request that a personal

wireless service provider submit RF

information that is consistent with our

above-outlined policies, we would be

less likely to find its action to be

inconsistent with section

332(c)(7)(B)(iv) of the Communications

Act. However, we stress that we will

continue to evaluate each request for

relief that is filed concerning state and

local RF regulations and we will

determine, on a case by-case basis,

whether such regulations are consistent

with section 332(c)(7)(B)(iv).

15. In addition, we seek comment as

to whether the more detailed showing

that we proposed as one of the two

alternatives above should include the

above outlined criteria. We believe that

the criteria set forth above should

provide sufficient information to

constitute the more detailed showing of

RF compliance while imposing a

minimum burden on personal wireless

service providers. We seek to determine

whether additional information, not

currently included above, is necessary

to demonstrate compliance or whether

any of the above-outlined elements are

too broad or unnecessary.

III. General Procedures for Reviewing

Requests for Relief

16. We seek comment on the

following proposed procedures for

reviewing requests for relief filed under

section 332(c)(7)(B)(v) of the

Communications Act. We propose that

parties seeking relief file a request for

declaratory ruling pursuant to § 1.2 of

the Commission’s Rules, asking that the

Commission review the state or local

regulation and grant appropriate relief.

Sections 1.45 through 1.49 of the

Commission’s Rules, concerning the

filing of pleadings and responsive

pleadings, shall be applicable with

respect to such requests. We propose

that a copy of the request be served on

the state or local authority that took the

action or failed to take the action against

which relief is sought.

17. We also seek comment on the

following method for providing

comment on such requests. We seek

comment on whether we should limit

participation in the proceeding to only

those interested parties able to

demonstrate standing to participate in

the proceeding. Section 332(c)(7)(B)(v)

of the Communications Act states that

requests for relief may be filed by any

‘‘person adversely affected.’’ We seek

comment on the definition of ‘‘person
48038 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules

adversely affected.’’ and how we should

determine whether an entity has

standing to participate in the

preemption proceeding. We find that

limiting the number of parties

participating in the proceeding to only

those that are ‘‘adversely affected’’ will

reduce the possibility of frivolous

filings, and expedite the processing of

preemption requests. We seek comment

on this proposed procedure.

IV. Rebuttable Presumption of

Compliance

18. We tentatively conclude that we

should adopt a rebuttable presumption

that would operate when reviewing

requests for relief from state and local

actions under section 332(c)(7)(B)(v).

Under such a procedure, we would

presume that personal wireless facilities

will comply with our RF emissions

guidelines. The state or local

government would have the burden of

overcoming this presumption by

demonstrating that the facility in

question does not or will not, in fact,

comply with our RF guidelines. We

believe that such a presumption would

be consistent with Commission practice.

Generally, we presume that licensees

are in compliance with our rules unless

presented with evidence to the contrary.

In addition, applicants for personal

wireless services must certify in their

applications that they will comply with

all of the Commission’s rules, including

the RF guidelines. With respect to

providers of ‘‘unlicensed wireless

services,’’ we tentatively conclude that

it would be consistent with Commission

practice to presume that they are in

compliance with our RF guidelines

because such providers must employ

type-accepted equipment that complies

with our RF guidelines. Therefore, we

seek comment on whether we should

presume that personal wireless facilities

are in compliance with our RF

guidelines, and whether we should

grant relief from state or local actions

that prevent the construction of such

facilities when such actions are based

on RF concerns. We remain sensitive, of

course, to the concerns of state and local

governments and we encourage state

and local governments to submit

comments explaining how such a

presumption might effect them. We

encourage state and local governments,

including LSGAC, to file comments on

the NPRM. We specifically request

comment in the interest of minimizing

any potential adverse affect the

establishment of a rebuttable

presumption may have on state and

local authorities’ ability to ensure the

health and safety of their citizens.

19. We have utilized a rebuttable

presumption in other contexts similar to

this one. In our proceeding concerning

preemption of local zoning regulation of

satellite earth stations, we adopted a

rebuttal presumption that state and local

regulation of small antennas is

presumed unreasonable. If the state or

local government objects to a request to

preempt its action, then it is permitted

to rebut the presumption by

demonstrating the necessity of the

regulation for health and safety reasons.

In the rulemaking we conducted

concerning access to

telecommunications equipment and

services by persons with disabilities, we

adopted a rebuttable presumption that,

by a date certain, all workplace noncommon area telephones would be

hearing aid compatible. We found that

the rebuttable presumption approach

would relieve employers of the need to

field-test and identify whether their

telephones are hearing aid compatible.

This presumption can be rebutted, on a

telephone-by-telephone basis, by any

person legitimately on the premises who

identifies a particular telephone as nonhearing aid compatible. Finally, in our

proceeding concerning the improvement

of the quality of the AM broadcast

service, we adopted a rebuttable

presumption of compliance with our

newly-adopted emission limits and we

did not require that AM station

licensees conduct periodic emission

measurements. However, this

presumption could be rebutted by

technical evidence (e.g., spectrum

analyzer measurement results) of noncompliance. In each of these cases, we

adopted a presumption and then

permitted the presumption to be

rebutted when presented with contrary

evidence. We seek comment as to

whether we should adopt a similar

rebuttable presumption for

consideration of preemption requests

filed pursuant to section 332(c)(7)(B)(v)

of the Communications Act.

V. Operation of Presumption

20. We recognize that some wireless

services are licensed on a geographic

area basis only and that our wireless

rules do not provide for the licensing of

individual tower or antenna facilities.

There may be a concern that individual

facilities do not, in fact, comply with

our RF guidelines. Moreover, certain

personal wireless services may be

provided via low-power, unlicensed

devices. Therefore, we believe that it is

appropriate to permit interested parties

to rebut the presumption of compliance.

We seek comment on the procedures we

should adopt to permit the presentation

of such a rebuttal showing. We propose

limiting the consideration of such

presentations to only those parties that

are able to demonstrate that they are

‘‘interested parties’’ or that otherwise

demonstrate that they have standing to

participate in the proceeding. We

propose that, in order to rebut the

presumption, interested parties would

bear the initial burden of proof and

would be required to demonstrate that

a particular facility does not in fact

comply with our RF limits. Such a

demonstration of noncompliance could

include, but would not be limited to: (1)

The interested party demonstrating that

the personal wireless service provider is

or would be operating without a valid

Commission authorization; (2) the

interested party submitting an

Environmental Assessment with

detailed RF measurements or

calculations that demonstrates that the

Commission’s RF exposure guidelines

for controlled or uncontrolled

environments is or would be exceeded

in the disputed area, or (3) the

interested party demonstrating that the

licensee’s operation otherwise may not

comply with the Commission’s RF

exposure guidelines. The Commission

shall examine this showing and

determine whether the interested party

has made a prima facie case for

noncompliance. If the interested party

fails to make a prima facie case for

noncompliance, then we would preempt

the state or local regulation. If a prima

facie case for noncompliance is made,

then the burden of proof would shift to

the personal wireless provider to

demonstrate that its facility would

comply with the RF limits. Should we

find that the facility in question does

not comply with our RF limits or should

the personal wireless service provider

fail to respond, we would not grant

relief from the state or local regulation

and we would initiate an enforcement

proceeding to ensure compliance with

our RF guidelines. If, after examination

of the personal wireless service

provider’s response, we find that the

facility does comply with our RF limits,

then we would preempt the state or

local regulation. Should the personal

wireless provider modify its facility to

comply with the RF emissions

guidelines, we propose allowing the

provider to file subsequent requests for

relief. In addition, we tentatively

propose that both the wireless provider

and the interested parties be permitted

to seek review of final Commission and

delegated authority actions taken

pursuant to section 332(c)(7)(B)(v) of the

Communications Act via the review

procedures set forth in our rules and the
Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules 48039

Communications Act. We seek comment

on these procedures.

21. We believe that allowing

interested parties to rebut the

presumption of compliance will provide

a balanced method for resolving section

332(c)(7)(B)(v) proceedings. We seek

comment as to whether such a

procedure is appropriate and whether

there are other methods an interested

party might employ to demonstrate its

contention that a personal wireless

facility does not or will not comply with

the RF emissions guidelines.

22. We believe that the procedures we

propose herein provide a fair and

balanced approach to reviewing

requests for relief from state and local

regulations based on the effects of RF

emissions filed pursuant to section

332(c)(7)(B)(v) of the Communications

Act. These procedures, if adopted,

would provide interested parties with

the opportunity to present their views to

the Commission and for the

Commission to carefully review requests

for relief in an expedited fashion. We

view this proceeding as another

important step in our ongoing efforts to

assist in the resolution of state and local

disputes concerning the siting of

personal wireless service facilities and

to provide expert guidance and input on

these important matters.

VI. Procedural Matters

i. Regulatory Flexibility Act

23. An Initial Regulatory Flexibility

Analysis for the NPRM in WT Docket

No. 97–192 appears below. As required

by section 603 of the Regulatory

Flexibility Act, 5 U.S.C. 603, the

Commission has prepared the Initial

Regulatory Flexibility Analysis of the

expected impact on small entities of the

proposals suggested in this document.

Written public comments are requested

on the Initial Regulatory Flexibility

Analysis. In order to fulfill the mandate

of the Contract with America

Advancement Act of 1996 regarding the

Final Regulatory Flexibility Analysis we

ask a number of questions in our Initial

Regulatory Flexibility Analysis

regarding the prevalence of small

businesses that may be impacted by the

proposed procedures. Comments on the

Initial Regulatory Flexibility Analysis

must be filed in accordance with the

same filing deadlines as comments on

the NPRM, but they must have a

separate and distinct heading

designating them as responses to the

Initial Regulatory Flexibility Analysis.

The Secretary shall send a copy of this

NPRM, including the Initial Regulatory

Flexibility Analysis, to the Chief

Counsel for Advocacy of the Small

Business Administration in accordance

with section 603(a) of the Regulatory

Flexibility Act, 5 U.S.C. 603(a).

24. As required by section 603 of the

Regulatory Flexibility Act, 5 U.S.C. 603,

the Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA)

of the expected impact on small entities

of the policies and rules proposed in

this NPRM. Written public comments

are requested on the IRFA. Comments

must be identified as responses to the

IRFA and must be filed by the deadlines

for comments on the NPRM as provided

in the NPRM.

25. Reason for Action: This

rulemaking proceeding was initiated to

secure comment on procedures for

reviewing requests for relief of State and

local regulations concerning the siting

of personal wireless service facilities

that are based on the environmental

effects of RF emissions pursuant to

section 332(c)(7)(B)(v) of the

Communications Act. This section of

the Communications Act was created

with the passage of section 704 the

Telecommunications Act of 1996.

26. Objectives: The procedures set

forth in the NPRM are designed to

provide a balanced method for

reviewing requests for relief and to

ensure that personal wireless service

providers are permitted to seek the full

relief afforded them under the

Communications Act. At the same time,

the Commission seeks to provide an

opportunity for interested parties to

argue that a specific wireless facility

will not comply with the Commission’s

RF guidelines. In addition, the

Commission believes that the

procedures adopted as a result of this

proceeding will allow for expedited

review of requests for relief, as well as,

much-needed guidance on this

important issue.

27. Legal Basis: The proposed action

is authorized under sections 4(i), 303(g),

303(r) and 332(c)(7) of the

Communications Act of 1934, as

amended.

28. Reporting, Recordkeeping, and

Other Compliance Requirements: The

proposals under consideration in the

NPRM include the possibility of

imposing a new filing requirement for

parties seeking relief pursuant to section

332(c)(7)(B)(v) of the Communications

Act. The filing requirement would be

used to determine whether to grant

relief from the State or local regulation

in question. This filing will be in the

form of a request for declaratory ruling

filed pursuant to § 1.2 of the

Commission’s Rules. Only interested

parties or those parties demonstrating

the requisite standing will be permitted

to participate in the proceeding. The

NPRM also seeks comment on whether

to adopt either a simple certification of

compliance or more detailed

demonstration of compliance that

personal wireless service providers will

be required to submit to State and local

governments as evidence of RF

emissions compliance.

29. We estimate that the average

burden on the party seeking relief will

be approximately two hours to prepare

the request for relief and file it with the

Commission. We estimate an equal

amount of time for the State or local

authority or other interested party

(referred to jointly herein as the

‘‘respondents’’) to prepare and file their

comments on and/or oppositions to the

preemption request. We estimate that 75

percent of both the requesting parties

and the respondents (which may

include small businesses) will contract

out the burden of preparing their filings.

We estimate that it will take

approximately 1 hour to coordinate

information with those contractors. The

remaining 25 percent of parties filing

requests and respondents (which may

include small businesses) are estimated

to employ in-house staff to provide the

information. We estimate that parties

requesting relief and respondents that

contract out the task of preparing their

filings will use an attorney or engineer

(average $200 per hour) to prepare the

information.

30. We estimate that the average

burden on the party required to prepare

a simple certification of RF compliance

to be less than one hour. We estimate

that the average burden on the party

required to prepare a more detailed

demonstration of RF compliance to be

approximately 5 hours. We estimate that

75 percent of these parties (which may

include small businesses) will contract

out the burden of preparing their filings.

We estimate that it will take

approximately 1 hour to coordinate

information with those contractors. The

remaining 25 percent of parties (which

may include small businesses) are

estimated to employ in-house staff to

provide the information. We estimate

that parties that contract out the task of

preparing their filings will use an

engineer (average $200 per hour) to

prepare the information.

31. Federal Rules Which Overlap,

Duplicate or Conflict With These Rules:

section 332(c)(7)(B)(iv)-(v) provides the

authority for the Commission to

consider requests for relief of state and

local actions.

32. Description, Potential Impact, and

Number of Small Entities Involved: The

proposed rules in this NPRM will apply

to all small businesses which avail

themselves of these new procedures,
48040 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules

including small businesses defined as

providers of ‘‘personal wireless

services’’ that seek relief from State and

local regulations based upon the

environmental effects of RF emissions.

The Commission is required to estimate

in its Final Regulatory Flexibility

Analysis the number of small entities to

which these new procedures will apply,

provide a description of these entities,

and assess the impact of the rule on

such entities. To assist the Commission

in this analysis, commenters are

requested to provide information

regarding how many total providers of

‘‘personal wireless services,’’ existing

and potential, will be considered small

businesses. ‘‘Small business’’ is defined

as having the same meaning as the term

‘‘small business concern’’ under the

Small Business Act. Based on that

statutory provision, we will consider a

small business concern 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). We seek

comment as to whether this definition is

appropriate in this context.

Additionally, we request each

commenter to identify whether it is a

small business under this definition. If

the commenter is a subsidiary of

another entity, this information should

be provided for both the subsidiary and

the parent corporation or entity.

33. The Commission has not yet

developed a definition of small entities

which respect to reviewing requests for

relief pursuant to section 332(c)(7)(B)(v)

of the Communications Act. Therefore,

the applicable definition of small entity

is the definition under the SBA

applicable to the ‘‘Communications

Services, Not Elsewhere’’ category. The

Census Bureau estimates indicate that of

the 848 firms in the ‘‘Communications

Services, Not Elsewhere’’ category, 775

are small businesses. While the

Commission anticipates receiving

requests for relief filed pursuant to

section 332(c)(7)(B)(v) of the

Communications Act, it is not possible

to predict how many will be filed or

what percentage of these will be filed by

small entities.

Cellular Radio Telephone Service

34. The Commission has not

developed a definition of small entities

applicable to cellular licensees.

Therefore, the applicable definition of

small entity is the definition under the

Small Business Administration (SBA)

rules applicable to radiotelephone

companies. This definition provides

that a small entity is a radiotelephone

company employing fewer than 1,500

persons. The size data provided by the

SBA does not enable us to make a

meaningful estimate of the number of

cellular providers which are small

entities because it combines all

radiotelephone companies with 500 or

more employees. We therefore used the

1992 Census of Transportation,

Communications, and Utilities,

conducted by the Bureau of the Census,

which is the most recent information

available. That census shows that only

12 radiotelephone firms out of a total of

1,178 such firms which operated during

1992 had 1,000 or more employees.

Therefore, even if all 12 of these large

firms were cellular telephone

companies, all of the remainder were

small businesses under the SBA’s

definition. We assume that, for purposes

of our evaluations and conclusions in

this IRFA, all of the current cellular

licensees are small entities, as that term

is defined by the SBA. Although there

are 1,758 cellular licenses, we do not

know the number of cellular licensees,

since a cellular licensee may own

several licenses.

35. The rules we are proposing would

permit a cellular licensee to seek relief

from the Commission for an adverse

State or local regulation that is based

upon environmental effects of RF

emissions. Since most cellular licensees

have constructed their facilities, we

anticipate receiving only a small

number of such requests from cellular

licensees and that all of these would be

small entities.

Personal Communications Service

36. The broadband PCS spectrum is

divided into six frequency blocks

designated A through F. Pursuant to 47

CFR 24.720(b), the Commission has

defined ‘‘small entity’’ for Blocks C and

F licensees as firms that had average

gross revenues of less than $40 million

in the three previous calendar years.

This regulation defining ‘‘small entity’’

in the context of broadband PCS

auctions has been approved by the SBA.

37. The Commission has auctioned

broadband PCS licenses in all of its

spectrum blocks A through F. We do not

have sufficient data to determine how

many small businesses under the

Commission’s definition bid

successfully for licenses in Blocks A

and B. As of now, there are 90 nondefaulting winning bidders that qualify

as small entities in the Block C auction

and 93 non-defaulting winning bidders

that qualify as small entities in the D, E,

and F Block auctions. Based on this

information, we conclude that the

number of broadband PCS licensees that

would be affected by the proposals in

this NPRM includes the 183 nondefaulting winning bidders that qualify

as small entities in the C, D, E and F

Block broadband PCS auctions.

38. The Commission expects to

receive a significant number of requests

for relief filed pursuant to section

332(c)(7)(B)(v) involving broadband PCS

licensee, many of whom may be small

entities. However, it is not possible to

estimate the exact number that will be

filed.

Paging and Radiotelephone Service, and

Paging Operations

39. Since the Commission has not yet

approved a definition for paging

services, we will utilize the SBA’s

definition applicable to radiotelephone

companies, i.e., an entity employing less

than 1,500 persons.

40. The Commission anticipates that a

total of 15,531 non-nationwide

geographic area licenses will be granted

or auctioned. The geographic area

licenses will consist of 3,050 MTA

licenses and 12,481 EA licenses. In

addition to the 47 Rand McNally MTAs,

the Commission is licensing Alaska as a

separate MTA and adding three MTAs

for the U.S. territories, for a total of 51

MTAs. No auctions of paging licenses

has been held yet, and there is no basis

to determine the number of licenses that

will be awarded to small entities. Given

the fact that nearly all radiotelephone

companies have fewer than 1,000

employees, and that no reliable estimate

of the number of prospective paging

licensees can be made, we assume, for

purposes of this IRFA, that all the

15,531 geographic area paging licenses

will be awarded to small entities, as that

term is defined by the SBA.

41. We estimate that a significant

number of paging licensees may file

requests for relief pursuant to section

332(c)(7)(B)(v) and that all of these will

be small entities.

Specialized Mobile Radio

42. Pursuant to 47 CFR 90.814(b)(1),

the Commission has defined ‘‘small

entity’’ for geographic area 800 MHz and

900 MHz SMR licenses as firms that had

average gross revenues of less than $15

million in the three previous calendar

years. This regulation defining ‘‘small

entity’’ in the context of 800 MHz and

900 MHz SMR has been approved by the

SBA.

43. The proposals set forth in the

NPRM apply to SMR providers in the

800 MHz and 900 MHz bands. We do

not know how many firms provide 800

MHz or 900 MHz geographic area SMR

service, nor how many of these

providers have annual revenues of less

than $15 million. Furthermore, we are

not able to estimate how many SMR
Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules 48041

providers will seek preemption

pursuant to section 332(c)(7)(B)(v) of the

Communications Act.

44. The Commission recently held

auctions for geographic area licenses in

the 900 MHz SMR band. There were 60

winning bidders who qualified as small

entities under the Commission’s

definition in the 900 MHz auction.

Based on this information, we conclude

that the number of geographic area SMR

licensees affected by the proposals set

forth in this NPRM includes these 60

small entities.

45. No auctions have been held for

800 MHz geographic area SMR licenses.

Therefore, no small entities currently

hold these licenses. A total of 525

licenses will be awarded for the upper

200 channels in the 800 MHz

geographic area SMR auction. However,

the Commission has not yet determined

how many licenses will be awarded for

the lower 230 channels in the 800 MHz

geographic area SMR auction. There is

no basis to estimate, moreover, how

many small entities within the SBA’s

definition will win these licenses. Given

the facts that nearly all radiotelephone

companies have fewer than 1,000

employees and that no reliable estimate

of the number of prospective 800 MHz

licensees can be made, we assume, for

purposes of our evaluations and

conclusions in this IRFA, that all of the

licenses will be awarded to small

entities, as that term is defined by the

SBA.

Unlicensed Personal Communications

Services and Wireless Exchange Access

Carriers

46. Section 332(c)(7)(C)(i) of the

Communications Act includes

‘‘unlicensed wireless services’’ and

‘‘common carrier wireless exchange

access services’’ in the definition of

‘‘personal wireless services’’ for which

relief may be sought under section

332(c)(7)(B)(v). We presently have no

data on the number of providers of

unlicensed wireless services or common

carrier wireless exchange access

services.

47. Significant Alternatives

Minimizing the Impact on Small

Entities Consistent with the Stated

Objectives: The proposals advanced in

the NPRM are designed to permit

personal wireless service providers with

the opportunity to seek relief pursuant

to section 332(c)(7)(B)(v) of the

Communications Act. The impact on

small entities in the proposals in the

NPRM is the opportunity to seek such

relief. These procedures were designed

to have a minimal impact on all

personal wireless providers, including

small entities, and to provide for a

balanced and expedited method for

reviewing such requests. The

Commission believes that such

procedures shall help to attain the

Congressional objective of ensuring that

small businesses have an opportunity to

participate in the provision of wireless

services by enabling small businesses to

overcome entry barriers in the provision

of such services.

48. This NPRM solicits comments on

a variety of proposals discussed herein.

Any significant alternatives presented in

the comments will be considered.

ii. Ex Parte Rules—Non-Restricted

Proceedings

49. This is a non-restricted notice and

comment rule making proceeding. Ex

parte presentations are permitted except

during the Sunshine Agenda period,

provided they are disclosed as provided

in the Commission’s rules. See generally

47 CFR §§ 1.1201, 1203, and 1.1206(a).

iii. Comment Dates

Pursuant to applicable procedures set

forth in §§ 1.415 and 1.419 of the

Commission’s rules, 47 CFR §§ 1.415

and 1.419, interested parties may file

comments to the NPRM on or before

October 9, 1997, and reply comments on

or before October 24, 1997. To file

formally in this proceeding, you must

file an original and four copies of all

comments, reply comments, and

supporting comments. If you want each

Commissioner to receive a personal

copy of your comments, you must file

an original plus nine copies. You should

send comments and reply comments to

Office of the Secretary, Federal

Communications Commission,

Washington, D.C. 20554. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center of the Federal Communications

Commission, Room 239, 1919 M Street,

N.W., Washington, D.C. 20554.

51. Parties are encouraged to submit

comments and reply comments on

diskette for possible inclusion on the

Commission’s Internet site so that

copies of these documents may be

obtained electronically. 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, Esq., Policy &

Rules Branch, Commercial Wireless

Division, Wireless Telecommunications

Bureau, 2100 M Street, N.W., 7th

Floor—Room 93, Washington, D.C.

20554. 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.

iv. Initial Paperwork Reduction Act of

1995 Analysis

52. The NPRM contains either a

proposed or modified information

collection. As part of its continuing

effort to reduce paperwork burdens, we

invite the general public and the Office

of Management and Budget to take this

opportunity to comment on the

information collections contained in

this NPRM, as required by the

Paperwork Reduction Act of 1995,

Public Law 104–13. Public and agency

comments are due at the same time as

other comments on this NPRM; OMB

comments are due on or before 60 days

after the publication in the Federal

Register. Comments should address: (a)

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;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) 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.

53. Written comments by the public

on the proposed and/or modified

information collections are due October

14, 1997. Written comments must be

submitted by the Office of Management

and Budget (OMB) on the proposed and/

or modified information collections on

or before 60 days after the publication

in the Federal Register. In addition to

filing comments with the Secretary, a

copy of any comments on the

information collections contained

herein should be submitted to both of

the following: Judy Boley, Federal

Communications Commission, Room

234, 1919 M Street, N.W., Washington,

DC 20554, or via the Internet to

jboley@fcc.gov and to Timothy Fain,

OMB Desk Officer, 10236 NEOB, 725—

17th Street, N.W., Washington, DC

20503 or via the Internet at

fainlt@al.eop.gov. For additional

information regarding the information

collections contained herein, contact

Judy Boley above.

v. Ordering Clauses

54. It is ordered That, pursuant to the

authority of sections 4(i), 303(g), 303(r),

and 332(c)(7) of the Communications

Act of 1934, as amended, 47 U.S.C.
48042 Federal Register / Vol. 62, No. 177 / Friday, September 12, 1997 / Proposed Rules

sections 154(i), 303(g), 303(r), and

332(c)(7), a notice of proposed

rulemaking is hereby adopted.

55. It is further ordered That the

petition for rulemaking of the Cellular

Telecommunications Industry

Association, filed December 22, 1994

(RM–8577), is hereby Dismissed.

vi. Further Information

56. For further information

concerning the NPRM, contact Shaun A.

Maher, Esq. at (202) 418–7240, internet:

smaher@fcc.gov, Policy & Rules Branch,

Commercial Wireless Division, Wireless

Telecommunications Bureau, Federal

Communications Commission,

Washington, D.C. 20554.

List of Subjects in 47 CFR Part 1

Radio, Reporting and recordkeeping

requirements.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–24166 Filed 9–11–97; 8:45 am]

BILLING CODE 6712–01–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 54 and 69

[CC Docket No. 97–181; FCC 97–316]

Defining Primary Lines

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: As a result of reforms adopted

to implement the Telecommunications

Act of 1996, our access charge rules

require incumbent LECs subject to the

Commission’s price cap rules to charge

subscriber line charges (SLCs) and

presubscribed interexchange carrier

charges (PICCs) at different levels for

secondary residential and multi-line

business lines. This NPRM considers

how Commission should define and

identify primary lines for the purposes

of implementing the Commission’s

access charge rules.

DATES: Pursuant to applicable

procedures set forth in §§ 1.415 and

1.419 of the Commission’s rules, 47 CFR

1.415 and 1.419, interested parties may

file comments on or before September

25, 1997, and reply comments on or

before October 9, 1997. Written

comments by the public on the

proposed and/or modified information

collections are due September 25, 1997.

Written comments must be submitted by

the Office of Management and Budget

(OMB) on the proposed and/or modified

information collections on or before

November 12, 1997.

ADDRESSES: Parties should send their

comments or reply comments to Office

of the Secretary, Federal

Communications Commission, 1919 M

Street, N.W., Room 222, Washington,

D.C. 20554. Parties filing on paper

should also send three (3) copies of their

comments to Sheryl Todd, Federal

Communications Commission,

Accounting and Audits Division,

Universal Service Branch, 2100 M

Street, N.W., Room 8611, Washington,

DC 20554. Parties filing in paper form

should also file one copy of any

documents filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc., 1231 20th Street, NW, Washington,

D.C. 20036. See SUPPLEMENTARY

INFORMATION section for further

information about filing comments and

reply comments electronically.

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 234, 1919 M Street,

N.W., Washington, DC 20554, or via the

Internet to jboley@fcc.gov, and to

Timothy Fain, OMB Desk Officer, 10236

NEOB, 725—17th Street, N.W.,

Washington, DC 20503 or via the

Internet to fainlt@al.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Valerie Yates, Legal Counsel, Common

Carrier Bureau, (202) 418–1500, or

Sheryl Todd, Common Carrier Bureau,

(202) 418–7400. For additional

information concerning the information

collections contained in this NPRM

contact Judy Boley at 202–418–0214, or

via the Internet at jboley@fcc.gov.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

1. This NPRM contains either a

proposed or modified information

collection. The Commission, as part of

its continuing effort to reduce

paperwork burdens, invites the general

public and the Office of Management

and Budget (OMB) to comment on the

information collections contained in

this NPRM, as required by the

Paperwork Reduction Act of 1995,

Public Law 104–13. Public and agency

comments are due at the same time as

other comments on this NPRM; OMB

notification of action is due 60 days

from date of publication of this NPRM

in the Federal Register. Comments

should address: (a) 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; (b) the accuracy of

the Commission’s burden estimates; (c)

ways to enhance the quality, utility, and

clarity of the information collected; and

(d) 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.

OMB Approval Number: None, new

information collection.

Title: In the Matter of Federal-State

Joint Board on Universal Service,

Defining Primary Lines, Notice of

Proposed Rulemaking, CC Docket No.

97–181.

Form No.: None.

Type of Review: New collection.

Respondents: Business or other forprofit.

Frequency of Response: On occasion;

one-time requirement.

Proposed collection No. of respondents

Est. time per

response

Total annual

burden

Est. costs per

respondent

(a.) Request by ILEC to consumer .................................................................. 164 100 16,400 1,6400.00

(b.) Response by consumer to identify primary line ........................................ 149,141,075 1.083 12,378,709 0.00

(c.) Disclosure statement .................................................................................. 164 100 16,400 0.00

(d.) Recordkeeping ........................................................................................... 164 50 8,200 286,040.00

1 5 min.

Total Annual Burden: 12,419,709

hours.

Needs and Uses: The information

collections proposed in this NPRM are

necessary to fully implement the rules

the Commission adopted in its

Universal Service Order and Access

Charge Reform Order because, without

a definition and a means of identifying

and verifying primary residential lines,

incumbent LECs subject to Commission

price cap regulation will not be able to