To the Editor:
I am writing to clarify the law applicable to state and local regulation of personal wireless service providers, as discussed by Susan H.R. Jones in her article titled, “Who is in charge here?” in the Aug. 5 issue of RCR. Specifically, Ms. Jones inaccurately describes the relevant statute and commission rules applicable to personal wireless service facilities, as outlined in more detail below.
In her article, Ms. Jones correctly notes that, under the 1993 Budget Act, states and localities generally may not regulate the entry of or the rates charged by commercial mobile radio service providers, but they may regulate the other terms and conditions of commercial mobile service. In addition, the Telecommunications Act of 1996 provides that no state or local statute, regulation or legal requirement may prohibit or effectively prohibit the ability of any entity to provide any interstate or intrastate telecommunications service. The Federal Communications Commission currently has pending before it several petitions asking the commission to apply these provisions to specific state and local regulations involving, among other things, the assessment of fees or taxes on wireless service providers.
With respect to the regulation of facilities placement, Ms. Jones discusses a commission decision that became effective on April 18, which creates substantive and procedural rules governing state and local regulation of satellite earth station antennas. These rules were subsequently amended and extended by a decision released Aug. 6 implementing Section 207 of the 1996 Act. The rules set forth in these decisions, however, apply only to devices designed for over-the-air reception of television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite service. They do not apply to personal wireless service facilities.
State and local authority regarding the placement of personal wireless service facilities is governed by Section 704 of the 1996 Act. Section 704 provides that states and localities, in regulating the placement, construction and modification of personal wireless service facilities, may not unreasonably discriminate among providers of functionally equivalent facilities, may not prohibit or effectively prohibit the provision of personal wireless services and may not regulate based on the environmental effects of radio frequency emissions that comply with the commission’s regulations. Section 704 further provides that states and localities must act on a request for facilities placement authorization within a reasonable time and that any denial of authorization must be made in writing and supported by substantial evidence contained in a written record.
Within these parameters, states and localities may regulate personal wireless service facilities placement to the extent authorized by state or local law. Any appeal from a state or local action that is inconsistent with Section 704 must be filed in federal or state court, except that an action based on the effects of radio frequency emissions may be appealed to the courts or the commission. As required by the 1996 Act, the commission has recently amended its radio frequency emission guidelines.
Although the commission has no direct jurisdiction over the implementation of Section 704 outside the area of radio frequency emissions, we are eager to help wireless service providers and local communities to resolve facilities placement issues. To this end, the commission has established a Tower Siting Task Force, which I chair. The mission of the task force is to provide information regarding facilities siting issues and to assist parties in arriving at equitable solutions. In furtherance of these goals, the commission in April issued a facilities siting fact sheet, and we are currently preparing a supplemental fact sheet including additional information on the new radio frequency emissions standards and other issues. Copies of the fact sheet may be obtained from the commission’s fax-on-demand system at (202) 418-2830, or from the Internet at www.fcc.gov wtb wirehome. html.
