WASHINGTON-Tempering her replies with the caveat that she was speaking only for the Wireless Telecommunications Bureau and not for the full Federal Communications Commission, bureau chief Michele Farquhar in a Jan. 13 reply provided some positive responses to state and local concerns voiced Jan. 3 by Tom Wheeler, president of the Cellular Telecommunications Industry Association.
“We strongly believe the public interest is served to the extent that wireless telecommunications licensees are able to build out their systems, consistent with federal law and the recognition of legitimate land use concerns, with a minimum of misunderstanding and delay,” Farquhar began.
Allowing that she was responding to “facts presented in [CTIA’s] letter,” Farquhar first tackled CTIA’s concern with one state’s requirement that its public service commission issue a report on health risks posed by non-ionizing electromagnetic radiation emitted from wireless facilities. Citing the conference report that accompanied the Telecommunications Act of 1996, she wrote that such a requirement “would appear to be pre-empted, unless the regulations are limited to facilities that do not comply with the commission’s rules governing emissions.” Farquhar added, in part, that commission rules “appear to forbid a state or local government from denying any application based on the results of a state commission’s study or from delaying any decision pending the completion of that study.”
Regarding a county’s denial of an application to construct, Farquhar wrote that the unnamed county in question may have violated three sections of a commission rule in that such a ruling cannot prohibit a wireless carrier’s providing service; that the decision had to be in writing and supported by “substantial evidence contained in a written record;” and that the county board may have based its decision on public outcry, which is not a basis for denial.
A Florida city’s decision to assess recurring annual charges on monopoles and any antennas located on them raises questions regarding Communications Act strictures, Farquhar continued. Such fees would be considered barriers to entry and inconsistent with congressional intent, and possibly, unlawful local regulation of a commercial mobile radio operator. Farquhar cited a pending commission petition against a proposed property tax on wireless carriers in Oregon by writing, “The commission’s resolution of the petition should provide guidance regarding the pre-emption of state and local taxes and, perhaps, other fees as well.”
In addition, Farquhar acknowledged some problems with jurisdictions that make special financial demands of wireless carriers before allowing them into the marketplace, such as below-cost pricing and special franchises. Farquhar wrote that special franchise fees “may well constitute regulation of entry” and that demands for pricing discounts “appear to constitute local regulation of CMRS rates,” which also is forbidden. Another petition currently under consideration by the FCC and involving U S West Inc. and Roseville, Minn., should be used as a guideline once it is resolved, Farquhar said.
On excessive siting moratoria in place in many states, Farquhar referred to yet another petition under consideration submitted by CTIA regarding this very issue last month, but said she couldn’t provide detailed comments yet. She did say that a year-long moratorium could be considered a violation of the Communications Act because of possible discrimination.