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State-local advisory group meets with incoming FCC chair.

Local and state officials charged with advising the FCC on issues that affect their constituents addressed zoning and procedural matters last month at their third meeting.

The Local and State Government Advisory Committee (LSGAC) also met with FCC General Counsel Bill Kennard, President Clinton's choice to succeed Reed Hundt as chairman of the FCC.

In its advisory recommendations, the LSGAC, which was created by the FCC, urged the FCC not to issue any rulings which would preempt local authority to institute zoning moratoria or limit a localities' ability to require that wireless service providers demonstrate that their facilities comply with the FCC's radio frequency emissions regulations.

The LSGAC also issued an advisory recommending that the FCC amend its procedures to ensure that states and localities cited in petitions filed by industry are notified if their communities have been cited as an example of a nationwide problem.

Meeting with Kennard

The LSGAC also had the opportunity to meet with FCC General Counsel Bill Kennard to express concern about the recent petition filed by the National Association of Broadcasters (NAB) urging FCC preemption of local regulations over broadcast towers. Mr. Kennard, who is the White House nominee to replace Reed Hundt as FCC Chairman, committed to closely reviewing the concerns of the LSGAC. Moreover, Kennard expressed his strong desire to continue the existence of the Committee should he receive Senate confirmation for the position of FCC Chairman.

Kennard and Blair Levin, Chief of Staff to Chairman Hundt, also addressed the specific advisory recommendations submitted to the FCC by the Committee.

One member of Kennard's staff told the Committee that in response to one of its recommendations, the FCC's procedures are being reviewed to ensure that communities named in industry petitions are notified if they have been cited as an example of a problem.

The LSGAC as well as the FCC expressed hope that such a change in procedure will avoid misunderstandings of local and state interests by allowing the named community a chance to comment before the FCC on statements or factual assertions that the community might find misleading or inaccurate.

Local officials have consistently expressed concern about their inability to be well-represented before the FCC- where for many the FCC is a distant, unfamiliar and costly forum.

It is the hope of both the LSGAC and the FCC that by notifying affected communities that they have been cited in a petition, the communities will have an opportunity to participate in a process they have previously been excluded from.

Zoning Preemptions

In the matter of zoning preemption, however, it appears as though the FCC was not as accepting of the Committee's recommendation.

The LSGAC recommended to the FCC that the. agency deny the Cellular Telecommunications Industry Association (CTIA) petition seeking a blanket preemption of all local zoning moratoria affecting the siting of wireless telecommunications facilities. The Committee noted "Congress expressed its clear intent to protect state and local authority over the siting of personal wireless service facilities from interference from the Commission."

Despite the Committee's recommendation, the FCC issued a public notice seeking additional comments on CTIA's petition, in which the FCC tentatively concluded aft has the authority to consider whether local facility siting moratoria may prohibit or have the effect of prohibiting the ability of wireless service providers to offer service in violation of Section 253(a) (governing barriers to entry)."

In the public notice, the FCC recognized that "section 332[C](7) of the Telecommunications Act reserves to the courts the authority to review state and local decisions regarding the placement, construction, and modification of personal wireless service facilities in matters other than those involving radio the FCC determined that "section 332[C](7) does not limit its authority to review moratoria of unspecified lengths of time because they are not decisions on the siting of facilities." At the same time, the FCC tentatively concluded that "moratoria of a fixed duration, which permit local officials the opportunity to study and develop a process for handling siting requests would be a legitimate exercise of local land use authority."

The stated purpose of the public notice was to seek comment "on whether to preempt ... local facilities siting moratoria of a unlimited or unspecified duration." Comments are due to the FCC by September 11, 1997, reply comments are due September 26, 1997. NLC will be joining with the National Association of Telecommunications Officers and Advisors (NATOA) to file comments.

In other zoning preemption matters, local governments scored a victory when the FCC denied the California Payphone Association's (CPA) petition for preemption of a local California ordinance. CPA challenged the ordinance adopted by the City of Huntington Park, California because it prohibits payphones on private property in Huntington Park's central business district, unless they are located completely within an enclosed leasable building more than 10 feet from any pedestrian opening into a building. The city maintains the ordinance is principally intended to minimize potential loitering, solicitation, and other indirect criminal activity, such as the sale of illegal substances and telephone calling card fraud.

CPA filed their petition on the grounds that Huntington Park's ordinance violates section 253 of the Telecommunications Act of 1996, which requires the Commission to preempt the enforcement of any local statute, regulation, or legal requirement that prohibits an entity from providing any interstate or intrastate telecommunications service and goes beyond the realm of delegated municipal regulatory authority.

In reaching its decision, the Commission concluded that the Huntington Park ordinance did not violate this section of the Act. The agency determined that the City of Huntington Park did not "materially inhibit or limit the ability of any competitor or potential competitor to compete in a fair and balanced regulatory environment," but merely identified areas in the central business area where competition for payphone establishment could not take place.
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Title Annotation:Local and State Government Advisory Council; FCC General Counsel Bill Kennard
Author:Tabin, Barrie; Jones, Sarah Beth
Publication:Nation's Cities Weekly
Date:Aug 4, 1997
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