Comment Template - Response to CTIA Petition on Tower Siting

Local Governments that would like to file comments in response to the CTIA petition may use the Template Comments for this purpose.  In doing so, please be sure to delete the instructions and to fill in the blanks where indicated.  You should file your Comments no later than September 15 and Reply Comments no later than September 30, 2008.

NATOA, joined by NLC, NACo and USCM are seeking an extension of time to file comments, but unless that request is granted, you must file by the dates above.  We will advise if the FCC grants the requested extension.


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Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C.  20554

 _________________________________________
                                                                        )
In the Matter of                                                  )
                                                                        )            WT Docket No. 08-165
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                                          )
_________________________________________)

COMMENTS OF THE [NAME OF COMMUNITY]

These Comments are filed by the [NAME OF COMMUNITY] to urge the Commission to deny the Petition filed by CTIA. As noted below, CTIA’s Petition is without merit and without basis in law or fact. [NAME OF THE COMMUNITY] also joins in the Comments filed by the National Association of Telecommunications Officers and Advisors (“NATOA”) in response to CTIA’s Petition. Section 253 of Title 47 of the United States Code does not apply to wireless tower sitings. Rather, 47 U.S.C. § 332(c)(7)(B) governs wireless tower sitings to the exclusion of § 253.

Section 332(c)(7)(B)(i) provides:

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof–

(I)    shall not unreasonably discriminate among providers of functionally equivalent services; and

(II)     shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

Section 253 on the other hand provides that no local government may prohibit or effectively prohibit the provision of telecommunications services. The language in § 332 is specific to wireless service facilities, while § 253 address telecommunications generally.

Congress does not enact redundant code provisions. Further, the Supreme Court’s ruling in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-385 (1992), establishes that specific code sections supersede general code sections. Section 332 is very specific as to the remedies and procedures to be followed with respect to wireless facility applications.

Section 332 (c)(7)(B)(v) provides that any person adversely affected by a local government’s final action or failure to act may, within 30 days, file suit in any court of competent jurisdiction. The court must hear and decide the suit on an expedited basis. Further, any person adversely affected by local government act or failure to act that is inconsistent with clause 32(c)(7)(B)(iv) may petition the Commission for relief. The specificity of these remedies shows that § 332 applies to wireless service facilities to the exclusion of § 253.
 
The Commission should also deny CTIA’s Petition with respect to the request that the Commission should supply meaning to the phrase “failure to act.” The Commission’s authority to interpret language in the Communications Act of 1934 is limited to areas of ambiguity. “Failure to act” is not an ambiguous phrase. The word “failure” means the “omission of an occurrence or performance;” the word “act” means “to carry out or perform an activity.” Taken together, the phrase “failure to act” means to omit the performance of an activity. Contrary to CTIA’s assertion, there is nothing vague or ambiguous about this statutory language which would entitle the Commission to issue a declaratory ruling on this topic.

In addition, Congress made it perfectly clear that the time frame for responding to applications for wireless facility sitings is determined by reference to the nature of the application. Section 332(c)(7)(B)(ii) provides that local governments act on requests “within a reasonable time period, taking into account the nature of the request.” Therefore, even if ambiguity existed in the statute, the FCC would be acting outside its authority by mandating a fixed time period and imposing a remedy for violating that mandate, where Congress clearly intended fluidity.

[IF YOU HAVE NOT HAD ANY APPLICATIONS FOR WIRELESS FACILITY SITINGS, PLEASE STATE THAT AND GO TO THE SIGNATURE BLOCK, OTHERWISE PLEASE COMPLETE THE FOLLOWING. PLEASE TAILOR YOUR RESPONSE WITH SPECIFIC REFERENCE TO YOUR STATE LAW AND LOCAL CODE REQUIREMENTS]

To assist the Commission in its evaluation, below are details specific to the wireless facilities siting process and experiences in [NAME OF COMMUNITY].

1.             LEGAL REQUIREMENTS FOR FACILITY SITING

In some jurisdictions, applications for facility siting may be addressed administratively, without the need for public hearings, others are required by state and local law to follow certain processes and procedures.

PLEASE USE THE PARAGRAPH(S) THAT BEST FIT YOUR SITUATION AS TEMPLATES FOR THIS SECTION

State and local law in [NAME OF CITY AND STATE] requires that certain notice and public hearings to ensure that the rights of the applicant and the public are preserved. These requirements are found in the following state and local code provisions: INSERT CODE PROVISION CITATION. Specifically, [NAME OF COMMUNITY] is required to [X NO.OF DAYS FOR NOTICE, PARTICULAR PUBLICATION REQUIREMENTS, ETC.]
 
[NAME OF CITY AND STATE] has a specific ordinance address wireless facility siting. The ordinance was enacted INSERT DATE OF ORDINANCE, [after public hearing/vote?] and requires INSERT REQUIREMENTS OF ORDINANCE.

[In addition], [NAME OF CITY AND STATE], has a tower siting committee which reviews applications pursuant to federal, state and local law. The rules of this committee provide INSERT TOWER SITING COMMITTEE INFO HERE.

2.            NUMBER OF APPLICATIONS AND OUTCOMES

 [Please detail below the number of wireless facilities applications you have had in the past five (5) years.  Provide information as to how long the process took, how that time period compares to other kinds of land use applications (i.e., residential development, big box retail, industrial development, annexations, etc., and whether there was any “delay” in the process.  If there was any delay, explain the reasons, remembering that the Commission begins with the premise that all delay is local government imposed. In particular if interactions with one or more providers skew the results for average processing times, address those situations separately.]

In 2008 [or 2007, 2006, as applicable], we have had ___ applications for approval of wireless telecommunications facilities.  Of these __ applications were for collocations on existing facilities, __ were for new facilities on existing structures like water towers or buildings, and __ were for new towers.

The average time between filing of an application and final decision has been ___________ [If the average time is different for different types of applications, provide information on the average time for each.]  By comparison, in [NAME OF JURISDICTION], the average time between application and final action for other land use approvals like [describe, as applicable] is ______________.  [IF APPLICABLE:] With respect to __ applications in [year], there were circumstances of delay.  The delay of [period of time] was caused by [describe facts].

3.    CONCLUSION

In conclusion, the Commission does not have the authority to issue the declaratory ruling requested by CTIA because it would be contrary to Congress’s intentions. Further, the current process for addressing land use applications ensures that the rights of citizens in our community to govern themselves and ensure the appropriate development of the community are properly balanced with the interests of all applicants. The system works well and there is no evidence to suggest that the Commission should grant a special waiver of state and local law to the wireless industry.  Any perceived difficulties experienced by wireless providers can and are adequately addressed through the electoral process in each individual community and the courts.  Federal agency intrusion is neither warranted nor authorized.

                                                                                Respectfully submitted,
 
                                                                                                                                                                                    
                                                                               ____________________________________
                                                                                NAME, TITLE
                                                                                CITY
                                                                                ADDRESS
                                                                                PHONE NUMBER

[DATE]