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[Federal Register Volume 66, Number 10 (Tuesday, January 16, 2001)]
[Rules and Regulations]
[Pages 3499-3501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1086]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 97-192; FCC 00-408]

Procedures for Reviewing Requests for Relief from State and Local 
Regulations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission addresses the issues raised 
in a previous Commission Notice of Proposed Rule Making regarding its 
review of requests for relief from impermissible State and local 
regulation of personal wireless service facilities regarding 
environmental effects of radiofrequency (RF) emissions. We establish 
that such requests under the Communications Act of 1934, as amended, 
shall be filed as petitions for declaratory ruling. Further, we 
establish certain required and recommended procedures regarding the 
service of pleadings and comment periods in such proceedings. The 
procedures adopted will facilitate the prompt resolution of such while 
ensuring that State and local governments have an opportunity to 
respond to issues raised in the context of these proceedings.

DATES: The rule change set forth in this document contains an 
information collection requirement that has not yet been approved by 
OMB. The FCC will publish a document in the Federal Register announcing 
the effective date of these rule changes. Comments from the public, 
OMB, and other agencies on the information collections contained in 
this document are due March 19, 2001.

ADDRESSES: A copy of any comments on the information collections 
contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 1-C804, 445 12th Street, SW., 
Washington, DC 20554, or via the Internet to [email protected], and to 
Edward C. Springer, OMB Desk Officer, Room 10236 NEOB, 725 17th Street, 
NW., Washington, DC 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Joel Taubenblatt at (202) 418-1513 
(Wireless Telecommunications Bureau). For additional information 
concerning the information collection contained in this document, 
contact Judy Boley at 202-418-0214, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Report and Order in 
WT Docket No. 97-192 (the ``R&O''), FCC 00-408, adopted November 13, 
2000 and released November 17, 2000. The complete text of the document 
is available for inspection and copying during normal business hours in 
the FCC Reference Center, 445 12th Street, SW., Washington, DC, and 
also may be purchased from the Commission's copy contractor, 
International Transcription Services, (202) 857-3800, 445 12th Street, 
SW., CY-B400, Washington, DC 20554. The full text of this R&O is also 
available via the Internet at http://www.fcc.gov/Bureaus/Wireless/Orders/2000/fcc00408.doc.

Paperwork Reduction Act

    This R&O contains a new information collection. Specifically, the 
Report and Order amends Note 1 to paragraph (a) of 47 CFR .1206 of the 
Commission's rules so that the expanded service requirements set forth 
in that note apply to petitions filed pursuant to 47 U.S.C. 
332(c)(7)(B)(v) (i.e., petitions for relief from impermissible State 
and local regulation of personal wireless service facilities on the 
basis of RF emissions). Thus, petitioners seeking relief under 47 
U.S.C. 332(c)(7)(B)(v) must serve a copy of such petitions on those 
State and local governments that are the subject of the petitions as 
well as on those State and local governments otherwise specifically 
identified in the petitions whose actions petitioners argue are 
inconsistent with federal law.
    The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public, Office of Management and 
Budget (OMB), and other federal agencies to comment on the information 
collection(s) contained in this R&O as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. It will be submitted to the 
OMB for review under Section 3507(d) of the PRA. Public, OMB, and other 
agency comments are due March 19, 2001. Comments should address: (a) 
Whether the new collection of information is necessary for the proper 
performance of the functions of the Commission,

[[Page 3500]]

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.
    All comments on the information collections contained herein should 
be submitted to Judy Boley, Federal Communications Commission, Room 1-
C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected], and to Edward C. Springer, OMB Desk Officer, Room 
10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the 
Internet to [email protected].
    OMB Control Number: 3060-XXXX.
    Title: 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, Report and Order (Preemption of State and 
Local Government Regulation of Tower Siting on the Basis of the 
Environmental Effect of Radiofrequency Emissions).
    Form No.: NA.
    Type of Review: New collection.
    Respondents: Business or other for-profit; not-for-profit 
institutions; state and/or local or tribal governments.
    Number of Respondents: 10.
    Estimated Time per Response: .5 hr.
    Total Annual Burden: 5 hrs.
    Total Annual Costs: $100.
    Needs and Uses: These procedures will ensure that petitions seeking 
relief under 47 U.S.C. 332(c)(7)(B)(v) will be resolved efficiently, 
with an opportunity for all interested parties to participate.

Synopsis of Report and Order

    The Report and Order (``R&O'') addresses the issues raised in the 
RF Procedures NPRM, 62 FR 48034, regarding the Commission's review of 
requests for relief from impermissible State and local regulation of 
personal wireless service facilities based on the environmental effects 
of radiofrequency (RF) emissions. Specifically, the R&O provides that 
such requests under 47 U.S.C. 332(c)(7)(B)(v) shall be filed as 
petitions for declaratory ruling, and establishes certain required and 
recommended procedures regarding the service of pleadings and comment 
periods in such proceedings. The R&O also concludes that the other 
issues raised in the RF Procedures NPRM are best addressed through 
case-by-case adjudication. In particular, the R&O notes the 
Commission's expectation that the recently-adopted Local Official's 
Guide will facilitate the common sense resolution of disputes regarding 
demonstrations of compliance with the Commission's RF emissions rules, 
without resort to litigation or other formal dispute resolution.

Discussion

    The R&O provides that requests for relief from the Commission under 
47 U.S.C. 332(c)(7)(B)(v) shall be filed as petitions for declaratory 
ruling pursuant to 47 CFR 1.2 of the Commission's rules. In addition, 
the R&O concludes that such petitions shall be subject to the 
Commission's procedures applicable to petitions for declaratory ruling, 
with the exception of the pleading cycle guidelines and service rules 
set forth as follows. The pleading cycle guidelines set forth in the 
Section 253 Procedures Public Notice are equally appropriate for 
petitions for declaratory ruling that seek relief under 47 U.S.C. 
332(c)(7)(B)(v). Specifically, the R&O anticipates that the pleading 
cycle for petitions for declaratory ruling that seek relief under 47 
U.S.C. 332(c)(7)(B)(v) will be approximately 30 days for oppositions 
and approximately 15 days for replies. The specific pleading cycle for 
each petition will be established by the Wireless Telecommunications 
Bureau (Bureau) by public notice, and may vary from the approximate 
timeframe listed above if the Bureau finds that variation is 
appropriate.
    The R&O also finds that petitions for declaratory ruling seeking 
relief under 47 U.S.C. 332(c)(7)(B)(v) are similar to petitions seeking 
Commission preemption of State or local government authority, and 
should be subject to the Ex Parte Order's expanded service rules 
referenced above. Accordingly, the R&O amends the expanded service 
requirements in the ex parte rules to include petitioners seeking 
relief under 47 U.S.C. 332(c)(7)(B)(v). Thus, petitioners seeking 
relief under 47 U.S.C. 332(c)(7)(B)(v) must serve a copy of such 
petitions not only on those State and local governments that are the 
subject of the petitions, but also on those State and local governments 
otherwise specifically identified in the petitions whose actions 
petitioners argue are inconsistent with federal law.
    In addition, the R&O recommends that, if a petition involves a 
local statute, regulation, ordinance or legal requirement, the 
petitioner should serve the appropriate state entity, in addition to 
the appropriate local entity. The R&O also recommends that, subsequent 
to the filing and service of the initial petition, each party, 
including the petitioner and each respondent State or local government 
entity, should serve all other parties with a copy of its pleadings and 
any filing made pursuant to the Commission's ex parte rules.
    The R&O finds that these procedural guidelines, in combination with 
the Ex Parte Order's expanded service rules and other Commission rules 
generally applicable to petitions for declaratory ruling, will 
facilitate the prompt resolution of petitions seeking relief from the 
Commission under 47 U.S.C. 332(c)(7)(B)(v), while ensuring that State 
and local governments have an opportunity to respond to allegations 
raised against them in the context of these proceedings.
    The R&O also concludes that the other issues raised in the RF 
Procedures NPRM are best addressed through case-by-case adjudication. 
In particular, with respect to requirements related to demonstrating 
compliance with the Commission's RF emissions rules, the R&O notes the 
Commission's expectation that the Local Official's Guide will 
facilitate voluntary resolution of most disputes regarding this issue. 
With respect to the other issues, the R&O finds that a rulemaking is 
unnecessary in light of the relatively low level of controversy and the 
complexity of the issues.

Final Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (RFA),\1\ the RF 
Procedures NPRM incorporated an Initial Regulatory Flexibility Analysis 
(IRFA) of the proposed rules pursuant to 5 U.S.C. 605. No comments were 
filed on the IRFA. Section 604 of the Regulatory Flexibility Act, as 
amended, requires a final regulatory flexibility analysis in a notice 
and comment rulemaking proceeding unless the Commission certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' The RFA generally defines 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria

[[Page 3501]]

established by the Small Business Administration (SBA). The Commission 
believes, as discussed below, that the rule adopted in this proceeding 
will not have a significant economic impact on a substantial number of 
small entities.
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    \1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et Seq., has 
been amended by the Contract With America Advancement Act of 1996, 
Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the 
CWAAA is the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA).
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    The Commission is making one rule change in this Report and Order. 
Specifically, the Commission amends Note 1 to paragraph (a) of 47 
C.F.R. 1.1206 of its rules so that the expanded service requirements 
set forth in that note apply to petitions filed pursuant to 47 U.S.C. 
332(c)(7)(B)(v) (i.e., petitions for relief from impermissible State 
and local regulation of personal wireless service facilities on the 
basis of RF emissions). Thus, petitioners seeking relief under 47 
U.S.C. 332(c)(7)(B)(v) must serve a copy of such petitions on those 
State and local governments that are the subject of the petitions as 
well as on those State and local governments otherwise specifically 
identified in the petitions whose actions petitioners argue are 
inconsistent with federal law. Given that the Commission has received 
only one petition for relief under 47 U.S.C. 332(c)(7)(B)(v), we do not 
anticipate that numerous State and local governments will be the 
subject of such petitions or identified in such petitions. Thus, we do 
not expect that the service requirement adopted in this Report and 
Order will impose a significant burden of cost and time on petitioners, 
including petitioners that are small entities. We believe that this 
service requirement will facilitate the efficient resolution of 
petitions seeking relief under 47 U.S.C. 332(c)(7)(B)(v). Moreover, we 
believe that this requirement will ensure that State and local 
governments, including those governments that are small entities, have 
an opportunity to participate in proceedings under 47 U.S.C. 
332(c)(7)(B)(v).
    Accordingly, the Commission certifies, pursuant to 5 U.S.C. 605(b) 
of the Regulatory Flexibility Act, as amended by the Contract with 
America Advancement Act of 1996, that the rule adopted in this Report 
and Order will not have a significant economic impact on a substantial 
number of small entities. The Commission will send a copy of the Report 
and Order, including a copy of this final certification, in a report to 
Congress pursuant to the Small Business Regulatory Enforcement Fairness 
Act of 1996. In addition, the Report and Order and this certification 
will be sent to the Chief Counsel for Advocacy of the Small Business 
Administration, and a summary will be published in the Federal Register

Report to Congress

    The Commission will send a copy of this Report and Order, including 
the Final Regulatory Flexibility Certification, to Congress pursuant to 
the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 
U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of 
this Report and Order, including the Final Regulatory Flexibility 
Certification, to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of this Report and Order (or summary thereof) 
and the Final Regulatory Flexibility Certification will also be 
published in the Federal Register. See 5 U.S.C. 604(b).

Ordering Clauses

    Accordingly, pursuant to the authority of Sections 4(i), 303(r), 
and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 303(r), and 332(c)(7), it is ordered that this Report and Order 
is hereby adopted.
    The rule changes set forth in this Report and Order contain an 
information collection requirement that has not yet been approved by 
OMB. The FCC will publish a document in the Federal Register announcing 
the effective date of these rule changes.
    The motion of the City of Fountain, Colorado, to consider late-
filed comments is granted.
    The Commission's Consumer Information Bureau, Reference Information 
Center, shall send a copy of this Report and Order, including the Final 
Regulatory Flexibility Certification, to the Chief Counsel for Advocacy 
of the Small Business Administration.

List of Subjects in 47 CFR Part 1

    Communications common carriers, Telecommunications, Permit-but-
disclose proceedings.

    Federal Communications Commission.
Shirley S. Suggs,
Chief, Publications Group.

Rule Change

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR Part 1 as follows:

PART 1--PRACTICE AND PROCEDURES

    1. The authority citation for Part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise 
noted.

    2. Section 1.1206, Note 1 to Paragraph(A) is revised to read as 
follows:

Sec. 1.1206  Permit-but-disclose proceedings.

    (a) * * *

    Note 1 to Paragraph (A): In the case of petitions for 
declaratory ruling that seek Commission preemption of state or local 
regulatory authority and petitions for relief under 47 U.S.C. 
332(c)(7)(B)(v), the petitioner must serve the original petition on 
any state or local government, the actions of which are specifically 
cited as a basis for requesting preemption. Service should be made 
on those bodies within the state or local governments that are 
legally authorized to accept service of legal documents in a civil 
context. Such pleadings that are not served will be dismissed 
without consideration as a defective pleading and treated as a 
violation of the ex parte rules unless the Commission determines 
that the matter should be entertained by making it part of the 
record under Sec. 1.1212(d) and the parties are so informed.

* * * * *
[FR Doc. 01-1086 Filed 1-12-01; 8:45 am]
BILLING CODE 6712-01-P
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