Petition for Declaratory Ruling To Clarify Provisions of Section 332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, 67871-67876 [E9-30291]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 74, Number 243 (Monday, December 21, 2009)]
[Notices]
[Pages 67871-67876]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30291]


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FEDERAL COMMUNICATIONS COMMISSION

[WT Docket No. 08-165; FCC 09-99]


Petition for Declaratory Ruling To Clarify Provisions of Section 
332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under 
Section 253 State and Local Ordinances That Classify All Wireless 
Siting Proposals as Requiring a Variance

AGENCY: Federal Communications Commission.

ACTION: Declaratory ruling.

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SUMMARY: In this document, the Commission addresses a Petition for 
Declaratory Ruling (Petition) filed by CTIA--The Wireless 
Association[reg] (CTIA) seeking clarification of provisions in Sections 
253 and 332(c)(7) of the Communications Act of 1934, as amended 
(Communications Act), regarding State and local review of

[[Page 67872]]

wireless facility siting applications. Because delays in the zoning 
process have hindered the deployment of new wireless infrastructure, 
the Commission defines timeframes for State and local action on 
wireless facilities siting requests, while also preserving the 
authority of States and localities to make the ultimate determination 
on local zoning and land use policies. The intended effect of the 
ruling is to promote the deployment of broadband and other wireless 
services by reducing delays in the construction and improvement of 
wireless networks.

DATES: Effective November 18, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Angela Kronenberg, Spectrum & 
Competition Policy Division, Wireless Telecommunications Bureau, 
Federal Communications Commission, 445 12th Street, SW., Washington, DC 
20554.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling (Ruling) in WT Docket No. 08-165 released November 
18, 2009. The complete text of the Ruling is available for public 
inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday 
or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. The Ruling may also be purchased from the Commission's 
duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals 
II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, 
telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI 
at its Web site: https://www.BCPIWEB.com. When ordering documents from 
BCPI please provide the appropriate FCC document number, FCC 09-99. The 
Ruling is also available on the Internet at the Commission's website 
through its Electronic Document Management System (EDOCS): https://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.
    Paperwork Reduction Act of 1995 Analysis: Document FCC 09-99 does 
not contain new information collection requirements subject to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, 
it does not contain any new or modified ``information collection burden 
for small business concerns with fewer than 25 employees,'' pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198. 
See 47 U.S.C. 3506(c)(4).

Synopsis

I. Introduction

    1. On July 11, 2008, CTIA (Petitioner) filed its Petition 
requesting that the Commission issue a Declaratory Ruling clarifying 
provisions in sections 253 and 332(c)(7) of the Communications Act 
regarding the timeframes in which zoning authorities must act on siting 
requests for wireless towers or antenna sites, their power to restrict 
competitive entry by multiple providers in a given area, and their 
ability to impose certain procedural requirements on wireless service 
providers. In the Ruling, the Commission grants the Petition in part 
and denies it in part to ensure that both localities and service 
providers may have an opportunity to make their case in court, as 
contemplated by section 332(c)(7) of the Act.

II. Discussion

    2. In the Ruling, the Commission finds it has the authority to 
interpret section 332(c)(7), and it addresses the three issues raised 
in the Petition. On the first issue, the Commission concludes that it 
should define what constitutes a presumptively ``reasonable period of 
time'' beyond which inaction on a personal wireless service facility 
siting application will be deemed a ``failure to act.'' The Commission 
then determines that in the event a State or local government fails to 
act within the appropriate time period, the applicant is entitled to 
bring an action in court under section 332(c)(7)(B)(v). At that point, 
the State or local government will have the opportunity to present to 
the court arguments to show that additional time would be reasonable, 
given the nature and scope of the siting application at issue. The 
Commission next concludes that the record supports setting the time 
limits at 90 days for State and local governments to process 
collocation applications, and 150 days for them to process applications 
other than collocations. On the second issue raised by the Petition, 
the Commission finds that it is a violation of section 
332(c)(7)(B)(i)(II) for a State or local government to deny a personal 
wireless service facility siting application solely because that 
service is available from another provider. On the third issue, because 
the Petitioner has not presented any evidence of a specific 
controversy, the Commission denies the request that it find that a 
State or local regulation that explicitly or effectively requires a 
variance or waiver for every wireless facility siting violates section 
253(a). Finally, the Commission addresses other issues raised in the 
record, including dismissal of a Cross-Petition filed by the EMR Policy 
Institute (EMRPI) that, inter alia, seeks a declaratory ruling relating 
to the Commission's regulations regarding exposure to radio frequency 
(RF) emissions.
    3. Time for Acting on Facility Siting Applications. Section 
332(c)(7)(B)(ii) of the Communications Act states that State or local 
governments must act on requests for personal wireless service facility 
sitings ``within a reasonable period of time.'' Section 332(c)(7)(B)(v) 
further provides that ``[a]ny person adversely affected by any final 
action or failure to act'' by a State or local government on a personal 
wireless service facility siting application ``may, within 30 days 
after such action or failure to act, commence an action in any court of 
competent jurisdiction.''
    4. The Commission finds that the evidence in the record 
demonstrates that personal wireless service providers have often faced 
lengthy and unreasonable delays in the consideration of their facility 
siting applications, and that the persistence of such delays is 
impeding the deployment of advanced and emergency services. To provide 
guidance, remove uncertainty and encourage the expeditious deployment 
of wireless broadband services, the Commission therefore determines 
that it is in the public interest to define the time period after which 
an aggrieved party can seek judicial redress for a State or local 
government's inaction on a personal wireless service facility siting 
application. Specifically, the Commission finds that a ``reasonable 
period of time'' is, presumptively, 90 days to process personal 
wireless service facility siting applications requesting collocations, 
and, also presumptively, 150 days to process all other applications. 
Accordingly, if State or local governments do not act upon applications 
within those timeframes, then a ``failure to act'' has occurred and 
personal wireless service providers may seek redress in a court of 
competent jurisdiction within 30 days, as provided in section 
332(c)(7)(B)(v). The State or local government, however, will have the 
opportunity to rebut the presumption of reasonableness.
    5. The Commission finds that the record shows that unreasonable 
delays are occurring in a significant number of cases. For example, the 
Commission references data that the Petitioner compiled from its 
members showing certain personal wireless service facility siting 
applications had been pending final action for more than one year, and 
some more than 3 years. In addition, the Commission references several 
wireless providers who supplemented the record

[[Page 67873]]

with their individual experiences in the personal wireless service 
facility siting application process. The Commission states that the 
record evidence demonstrates that unreasonable delays in the personal 
wireless service facility siting applications process have obstructed 
the provision of wireless services. Many wireless providers have faced 
lengthy and costly processing. The Commission disagrees with State and 
local government commenters that argue that the Petition fails to 
provide any credible or probative evidence that any local government is 
engaged in delay with respect to processing personal wireless service 
facility siting applications, and that there is insufficient evidence 
on the record as a whole to justify Commission action. To the contrary, 
given the extensive statistical evidence provided by the Petitioner and 
supporting commenters, and the absence of more than isolated anecdotes 
in rebuttal, the Commission finds that the record amply establishes the 
occurrence of significant instances of delay.
    6. The Commission states that delays in the processing of personal 
wireless service facility siting applications are particularly 
problematic as consumers await the deployment of advanced wireless 
communications services, including broadband services, in all 
geographic areas in a timely fashion. Wireless providers currently are 
in the process of deploying broadband networks which will enable them 
to compete with the services offered by wireline companies. State and 
local practices that unreasonably delay the siting of personal wireless 
service facilities threaten to undermine achievement of Commission 
goals and impede the promotion of advanced services and competition 
deemed critical by Congress. In addition, the Commission states that 
deployment of facilities without unreasonable delay is vital to promote 
public safety, including the availability of wireless 911, throughout 
the nation.
    7. Given the evidence of unreasonable delays and the public 
interest in avoiding such delays, the Commission concludes that it 
should define the statutory terms ``reasonable period of time'' and 
``failure to act'' in order to clarify when an adversely affected 
service provider may take a dilatory State or local government to 
court. Specifically, the Commission finds that when a State or local 
government does not act within a ``reasonable period of time'' under 
section 332(c)(7)(B)(i)(II), a ``failure to act'' occurs within section 
332(c)(7)(B)(v). And because an ``action or failure to act'' is the 
statutory trigger for seeking judicial relief, the Commission's 
clarification of these terms will give personal wireless service 
providers certainty as to when they may seek redress for inaction on an 
application. The Commission expects that such certainty will enable 
personal wireless service providers more vigorously to enforce the 
statutory mandate against unreasonable delay that impedes the 
deployment of services that benefit the public. At the same time, the 
Commission's action will provide guidance to State and local 
governments as to what constitutes a reasonable timeframe in which they 
are expected to process applications, but recognizes that certain cases 
may legitimately require more processing time.
    8. By defining the period after which personal wireless service 
providers have a right to seek judicial relief, the Commission both 
ensures timely State and local government action and preserves 
incentives for providers to work cooperatively with them to address 
community needs. Wireless providers will have the incentive to resolve 
legitimate issues raised by State or local governments within the 
timeframes defined as reasonable, or they will incur the costs of 
litigation and may face additional delay if the court determines that 
additional time was, in fact, reasonable under the circumstances. 
Similarly, State and local governments will have a strong incentive to 
resolve each application within the timeframe defined as reasonable, or 
they will risk issuance of an injunction granting the application. In 
addition, specific timeframes for State and local government 
deliberations will allow wireless providers to better plan and allocate 
resources. The Commission states that this is especially important as 
providers plan to deploy their new broadband networks.
    9. The Commission rejects the Petition's proposals that the 
Commission go farther and either deem an application granted when a 
State or local government has failed to act within a defined timeframe 
or adopt a presumption that the court should issue an injunction 
granting the application. Section 332(c)(7)(B)(v) states that when a 
failure to act has occurred, aggrieved parties should file with a court 
of competent jurisdiction within 30 days and that ``[t]he court shall 
hear and decide such action on an expedited basis.'' The provision 
indicates Congressional intent that courts should have the 
responsibility to fashion appropriate case-specific remedies. As the 
Petitioner notes, many courts have issued injunctions granting 
applications upon finding a violation of section 332(c)(7)(B). However, 
the case law does not establish that an injunction granting the 
application is always or presumptively appropriate when a ``failure to 
act'' occurs. To the contrary, in those cases where courts have issued 
such injunctions upon finding a failure to act within a reasonable 
time, they have done so only after examining all the facts in the case. 
While the Commission agrees that injunctions granting applications may 
be appropriate in many cases, the proposals in personal wireless 
service facility siting applications and the surrounding circumstances 
can vary greatly. It is therefore important for courts to consider the 
specific facts of individual applications and adopt remedies based on 
those facts.
    10. The Commission also disagrees with commenters that argue that 
the statutory scheme precludes the Commission from interpreting the 
terms ``reasonable period of time'' and ``failure to act'' by reference 
to specific timeframes. Given the opportunities that the Commission has 
built into the process for ensuring individualized consideration of the 
nature and scope of each siting request, the Commission finds their 
arguments unavailing. Congress did not define either ``reasonable 
period of time'' or ``failure to act'' in the Communications Act. The 
term ``reasonable'' is ambiguous and courts owe substantial deference 
to the interpretation that the Commission accords to ambiguous terms. 
The Commission found in the local cable franchising context that the 
term ``unreasonably refuse to award'' a local franchise authorization 
in section 621(a)(1) of the Communications Act is ambiguous and subject 
to the Commission's interpretation. As in the local franchising 
context, it is not clear from the Communications Act what is a 
reasonable period of time to act on an application or when a failure to 
act occurs. By defining timeframes, the Commission states it will lend 
clarity to these provisions, giving wireless providers and State and 
local zoning authorities greater certainty in knowing what period of 
time is ``reasonable,'' and ensuring that the point at which a State or 
local authority ``fails to act'' is not left so ambiguous that it risks 
depriving a wireless siting applicant of its right to redress.
    11. The Commission's construction of the statutory terms 
``reasonable period of time'' and ``failure to act'' takes into 
account, on several levels, the section 332(c)(7)(B)(ii) requirement 
that the ``nature and scope'' of the request be considered and the 
legislative history's

[[Page 67874]]

indication that Congress intended the decisional timeframe to be the 
``usual period'' under the circumstances for resolving zoning matters. 
First, the timeframes the Commission defines are based on actual 
practice as shown in the record. Most statutes and government processes 
discussed in the record already conform to the timeframes the 
Commission defines in the Ruling. As such, the timeframes do not 
require State and local governments to give preferential treatment to 
personal wireless service providers over other types of land use 
applications. Second, the Commission considers the nature and scope of 
the request by defining a shorter timeframe for collocation 
applications, consistent with record evidence that collocation 
applications generally are considered at a faster pace than other tower 
applications. Third, under the regime that the Commission adopts, the 
State or local authority will have the opportunity, in any given case 
that comes before a court, to rebut the presumption that the 
established timeframes are reasonable. Finally, the Commission has 
provided for further adjustments to the presumptive deadlines in order 
to ensure that the timeframes accommodate certain contingencies that 
may arise in individual cases, including where the applicant and the 
State or local authority agree to extend the time, where the 
application has already been pending for longer than the presumptive 
timeframe as of the date of the Ruling, and where the application 
review process has been delayed by the applicant's failure to submit a 
complete application or to file necessary additional information in a 
timely manner. For all these reasons, the Commission concludes that the 
Commission's clarification of the broad terms ``reasonable period of 
time'' and ``failure to act'' is consistent with the statutory scheme.
    12. The Petition proposes a 45-day timeframe for collocation 
applications and a 75-day timeframe for all other applications. While 
the Commission recognizes that many applications can and perhaps should 
be processed within the timeframes proposed by the Petitioner, the 
Commission is concerned that these timeframes may be insufficiently 
flexible for general applicability. In particular, some applications 
may reasonably require additional time to explore collaborative 
solutions among the governments, wireless providers, and affected 
communities. Also, State and local governments may sometimes need 
additional time to prepare a written explanation of their decisions as 
required by section 332(c)(7)(B)(iii), and the timeframes as proposed 
may not accommodate reasonable, generally applicable procedural 
requirements in some communities. Although the reviewing court will 
have the opportunity to consider such unique circumstances in 
individual cases, the Commission states that it is important for 
purposes of certainty and orderly processing that the timeframes for 
determining when suit may be brought in fact accommodate reasonable 
processes in most instances.
    13. Based on the Commission's review of the record as a whole, it 
finds 90 days to be a generally reasonable timeframe for processing 
collocation applications and 150 days to be a generally reasonable 
timeframe for processing applications other than collocations. Thus, a 
lack of a decision within these timeframes presumptively constitutes a 
failure to act under section 332(c)(7)(B)(v). The Commission finds that 
collocation applications can reasonably be processed within 90 days. 
Collocation applications are easier to process than other types of 
applications as they do not implicate the effects upon the community 
that may result from new construction. In particular, the addition of 
an antenna to an existing tower or other structure is unlikely to have 
a significant visual impact on the community. Therefore, many 
jurisdictions do not require public notice or hearings for 
collocations. In addition, several State statutes already require 
application processing for collocations within 90 days. For purposes of 
this standard, an application is a request for collocation if it does 
not involve a ``substantial increase in the size of a tower'' as 
defined in the Nationwide Programmatic Agreement for the Collocation of 
Wireless Antennas, 47 CFR part 1, Appendix B. Such a limitation will 
help to ensure that State and local governments will have a reasonable 
period of time to review those applications that may require more 
extensive consideration.
    14. The Commission further finds that the record shows that a 150-
day processing period for applications other than collocations is a 
reasonable standard that is consistent with most statutes and local 
processes. Based on the record, the Commission does not agree that the 
its imposition of the 90-day and 150-day timeframes will disrupt many 
of the processes State and local governments already have in place for 
personal wireless service facility siting applications.
    15. Section 332(c)(7)(B)(v) provides that an action for judicial 
relief must be brought ``within 30 days'' after a State or local 
government action or failure to act. Thus, if a failure to act occurs 
90 days (for a collocation) or 150 days (in other cases) after an 
application is filed, any court action must be brought by day 120 or 
180 on penalty of losing the ability to sue. The Commission concludes 
that a rigid application of the cutoff to cases where the parties are 
working cooperatively toward a consensual resolution would be contrary 
to both the public interest and Congressional intent. Accordingly, the 
Commission clarifies that a ``reasonable period of time'' may be 
extended beyond 90 or 150 days by mutual consent of the personal 
wireless service provider and the State or local government, and that 
in such instances, the commencement of the 30-day period for filing 
suit will be tolled.
    16. To the extent existing State statutes or local ordinances set 
different review periods than the Commission does in the Ruling, the 
Commission clarifies that its interpretation of section 332(c)(7) is 
independent of the operation of these statutes or ordinances. Thus, 
where the review period in a State statute or local ordinance is 
shorter than the 90-day or 150-day period, the applicant may pursue any 
remedies granted under the State or local regulation when the 
applicable State or local review period has lapsed. However, the 
applicant must wait until the 90-day or 150-day review period has 
expired to bring suit for a ``failure to act'' under section 
332(c)(7)(B)(v). Conversely, if the review period in the State statute 
or local ordinance is longer than the 90-day or 150-day review period, 
the applicant may bring suit under section 332(c)(7)(B)(v) after 90 
days or 150 days, subject to the 30-day limitation period on filing, 
and may consider pursuing any remedies granted under the State or local 
regulation when that applicable time limit has expired. Of course, the 
option is also available in these cases to toll the period under 
section 332(c)(7) by mutual consent.
    17. The Commission further concludes that given the ambiguity that 
has prevailed as to when a failure to act occurs, it is reasonable to 
give State and local governments an additional period to review 
currently pending applications before an applicant may file suit. 
Accordingly, as a general rule, for currently pending applications the 
Commission deems that a ``failure to act'' will occur 90 days (for 
collocations) or 150 days (for other applications) after the release of 
the Ruling. The

[[Page 67875]]

Commission recognizes, however, that some applications have been 
pending for a very long period, and that delaying resolution for an 
additional 90 or 150 days may impose an undue burden on the applicant. 
Therefore, a party whose application has been pending for the 
applicable timeframe that the Commission establishes or longer as of 
the release date of the Ruling may, after providing notice to the 
relevant State or local government, file suit under section 
332(c)(7)(B)(v) if the State or local government fails to act within 60 
days from the date of such notice. The notice provided to the State or 
local government shall include a copy of the Ruling. The Commission 
states that this option does not apply to applications that have 
currently been pending for less than 90 or 150 days, and in these 
instances the State or local government will have 90 or 150 days from 
the release of the Ruling before it will be considered to have failed 
to act. The Commission finds that such a transitional regime best 
balances the interests of applicants in finality with the needs of 
State and local governments for adequate time to implement the 
Commission's interpretation of section 332(c)(7).
    18. Finally, the Commission states that these timeframes should 
take into account whether applications are complete. The Commission 
finds that when applications are incomplete as filed, the timeframes do 
not include the time that applicants take to respond to State and local 
governments' requests for additional information. The Commission also 
finds that reviewing authorities should be bound to notify applicants 
within a reasonable period of time that their applications are 
incomplete. It is important that State and local governments obtain 
complete applications in a timely manner, and such a finding will 
provide the incentive for wireless providers to file complete 
applications in a timely fashion. The Commission finds, based on the 
record, that a review period of 30 days gives State and local 
governments sufficient time for reviewing applications for 
completeness, while protecting applicants from a last minute decision 
that applications should be denied as incomplete.
    19. Accordingly, the Commission concludes that the time it takes 
for an applicant to respond to a request for additional information 
will not count toward the 90 or 150 days only if that State or local 
government notifies the applicant within the first 30 days that its 
application is incomplete. The Commission finds that the record shows 
that the total amount of time, including the review period for 
application completeness, is generally consistent with those States 
that specifically include such a review period.
    20. Prohibition of Service by a Single Provider. The Petitioner 
asks the Commission to conclude that State or local regulation that 
effectively prohibits one carrier from providing service because 
service is available from one or more other carriers violates section 
332(c)(7)(B)(i)(II) of the Act. The Commission concludes that a State 
or local government that denies an application for personal wireless 
service facilities siting solely because one or more carriers serve a 
given geographic market has engaged in unlawful regulation that 
``prohibits or ha[s] the effect of prohibiting the provision of 
personal wireless services,'' within the meaning of section 
332(c)(7)(B)(i)(II).
    21. Section 332(c)(7)(B)(i)(II) provides, as a limitation on the 
statute's preservation of local zoning authority, that a State or local 
government regulation of personal wireless facilities ``shall not 
prohibit or have the effect of prohibiting the provision of personal 
wireless services.'' The Commission notes that courts of appeals 
disagree on whether a State or local policy that denies personal 
wireless service facility siting applications solely because of the 
presence of another carrier should be treated as a siting regulation 
that prohibits or has the effect of prohibiting such services. Thus, a 
controversy exists that is appropriately resolved by declaratory 
ruling.
    22. The Commission agrees with the Petitioner that the fact that 
another carrier or carriers provide service to an area is an inadequate 
defense under a claim that a prohibition of service exists, and the 
Commission concludes that any other interpretation of section 
332(c)(7)(B)(i)(II) would be inconsistent with the Telecommunications 
Act's pro-competitive purpose. While the Commission acknowledges that 
the provision could be interpreted in the manner endorsed by several 
courts--as a safeguard against a complete ban on all personal wireless 
service within the State or local jurisdiction, which would have no 
further effect if a single provider is permitted to provide its service 
within the jurisdiction--the Commission concludes that under the better 
reading of the statute, the limitation of State/local authority applies 
not just to the first carrier to enter into the market, but also to all 
subsequent entrants.
    23. The Commission reaches such a conclusion for several reasons. 
First, the Commission's interpretation is consistent with the statutory 
language referring to the prohibition of ``the provision of personal 
wireless services'' rather than the singular term ``service.'' Second, 
an interpretation that would regard the entry of one carrier into the 
locality as mooting a subsequent examination of whether the locality 
has improperly blocked personal wireless services ignores the 
possibility that the first carrier may not provide service to the 
entire locality, and a zoning approach that subsequently prohibits or 
effectively prohibits additional carriers therefore may leave segments 
of the population unserved or underserved. Third, the Commission finds 
unavailing the concern expressed by the Fourth Circuit (and some other 
courts) that giving each carrier an individualized right under section 
332(c)(7)(B)(i)(II) to contest an adverse zoning decision as an 
unlawful prohibition of its service ``would effectively nullify local 
authority by mandating approval of all (or nearly all) applications.'' 
Rather, the Commission construes the statute to bar State and local 
authorities from prohibiting the provision of services of individual 
carriers solely on the basis of the presence of another carrier in the 
jurisdiction; State and local authority to base zoning regulation on 
other grounds is left intact by the Ruling. Finally, the Commission's 
construction of the provision achieves a balance that is most 
consistent with the relevant goals of the Communications Act to improve 
service quality and lower prices for consumers.
    24. The Commission's determination also serves the Act's goal of 
preserving the State and local authorities' ability to reasonably 
regulate the location of facilities in a manner that operates in 
harmony with federal policies that promote competition among wireless 
providers. Nothing the Commission does in the Ruling interferes with 
these authorities' consideration of and action on the issues that 
traditionally inform local zoning regulation. Thus, where a bona fide 
local zoning concern, rather than the mere presence of other carriers, 
drives a zoning decision, it should be unaffected by the Commission's 
Ruling. The Commission observes that a decision to deny a personal 
wireless service facility siting application that is based on the 
availability of adequate collocation opportunities is not one based 
solely on the presence of other carriers, and so is unaffected by the 
Commission's interpretation of the statute in the Ruling.
    25. The Commission disagrees with the assertion that granting the 
Petition could have a negative impact on airports by increasing the 
number of potential obstructions to air navigation. As the

[[Page 67876]]

Federal Aviation Administration notes, the Commission's action on the 
Petition does not alter or amend the Federal Aviation Administration's 
regulatory requirements and process. The Commission also rejects the 
assertion that the declaration the Petitioner seeks would violate 
section 332(c)(7)(A)'s provision that the authority of a State or local 
government over decisions regarding the placement, construction, and 
modification of personal wireless service facilities is limited only by 
the limitations imposed in subparagraph (B). The Commission notes that 
the denial of a single application may sometimes establish a violation 
of section 332(c)(7)(B)(ii) if it demonstrates a policy that has the 
effect of prohibiting the provision of personal wireless services as 
interpreted herein.
    26. Ordinances Requiring Variances. The Petitioner requests that 
the Commission preempt, under section 253(a) of the Act, local 
ordinances and State laws that effectively require a wireless service 
provider to obtain a variance, regardless of the type and location of 
the proposal, before siting facilities. Because the Petitioner does not 
seek actual preemption of any ordinance by its Petition, nor does it 
present the Commission with sufficient information or evidence of a 
specific controversy on which to base such action or ruling, the 
Commission declines to issue a declaratory ruling that zoning 
ordinances requiring variances for all wireless siting requests are 
unlawful and will be struck down if challenged in the context of a 
section 253 preemption action.
    27. Other Issues. Numerous parties argue that the Petitioner failed 
to follow the Commission's service requirements with respect to 
preemption petitions. 47 CFR 1.1206(a), Note 1, of the Commission's 
rules requires that a party filing either a petition for declaratory 
ruling seeking preemption of State or local regulatory authority, or a 
petition for relief under section 332(c)(7)(B)(v), must serve the 
original petition on any State or local government whose actions are 
cited as a basis for requesting preemption. By its terms, the service 
requirement does not apply to a petition that cites examples of the 
practices of unidentified jurisdictions to demonstrate the need for a 
declaratory ruling interpreting provisions of the Communications Act. 
These parties' principal argument is that the Commission should require 
the Petitioner to identify the jurisdictions that it references 
anonymously, which, they assert, would then trigger the service 
requirement. However, nothing in the rules requires that these 
jurisdictions be identified.
    28. Several commenters argue that the Commission should deny the 
Petition in order to protect local citizens against the health hazards 
that these commenters attribute to RF emissions. To the extent 
commenters argue that State and local governments require flexibility 
to deny personal wireless service facility siting applications or delay 
action on such applications based on the perceived health effects of RF 
emissions, such authority is denied by statute under section 
332(c)(7)(B)(iv). The Commission concludes that such arguments are 
outside the scope of the proceeding.
    29. In its Cross-Petition, EMRPI contends that in light of 
additional data that has been compiled since 1996, the RF safety 
regulations that the Commission adopted at that time are no longer 
adequate. The Commission states that EMPRI's request to revisit the 
regulations is also outside the scope of the current proceeding, and 
the Commission dismisses EMRPI's Cross-Petition.

III. Conclusion

    30. For the reasons discussed in the Ruling, the Commission grants 
in part and denies in part CTIA's Petition for a Declaratory Ruling 
interpreting provisions of section 332(c)(7) of the Communications Act. 
By clarifying the statute, the Commission recognizes Congress' dual 
interests in promoting the rapid and ubiquitous deployment of advanced, 
innovative, and competitive services, and in preserving the substantial 
area of authority that Congress reserved to State and local governments 
to ensure that personal wireless service facility siting occurs in a 
manner consistent with each community's values.

IV. Ordering Clauses

    31. It is ordered that, pursuant to sections 4(i), 4(j), 201(b), 
253(a), 303(r), and 332(c)(7) of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), (j), 201(b), 253(a), 303(r), 332(c)(7), and 
Sec.  1.2 of the Commission's rules, 47 CFR 1.2, the Petition for 
Declaratory Ruling filed by CTIA--The Wireless Association is granted 
to the extent specified in the Ruling and otherwise is denied.
    32. It is further ordered that, pursuant to sections 4(i), 4(j), 
and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), (j), 332(c)(7), and Sec.  1.2 of the Commission's rules, 47 CFR 
1.2, the Cross-Petition filed by the EMR Policy Institute is dismissed.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E9-30291 Filed 12-18-09; 8:45 am]
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