“Regulations” and “Other Legal Requirements”

“Regulations” and “Other Legal Requirements”

95. 
    The terms of Section 253(a) specify that a “statute,” “regulation,” or “other legal requirement” may be preempted,²³ while the terms of Section 332(c)(7) refer to “decisions” concerning wireless facility siting and the “regulation” of siting.²⁴ We seek comment on how those terms should be interpreted. For instance, do the terms “statute,” “regulation,” and “legal requirement” in Section 253(a) have essentially the same meaning as the parallel terms “regulation” and “decisions” in Section 332(c)(7)? The Commission has held in the past that the terminology in Section 253(a) quoted above “recognizes that State and local barriers to entry could come from sources other than statutes and regulations” and “was meant to capture a broad range of state and local actions” that could pose barriers to entry—including agreements with a single party that result in depriving other parties of access to rights of way.²⁵ We believe there is a reasonable basis for concluding that the same broad interpretation should apply to the language of Section 332, and we seek comment on this analysis.
    
96. 
    We also seek comment on the extent to which these statutory provisions apply to States and localities acting in a proprietary versus regulatory capacity, and on what constitutes a proprietary capacity. In the 2014 Infrastructure Order, the Commission opined that the Spectrum Act and the rules and policies implementing it apply to localities’ actions on siting applications when acting in their capacities as land-use regulators, but not when acting as managers of land or property that they own and operate primarily in their proprietary roles.²⁶ The Order cited cases indicating that “Sections 253 and 332(c)(7) do not preempt non-regulatory decisions of a State or locality acting in its proprietary capacity.”²⁷ We seek comment on whether we should reaffirm or modify the 2014 Infrastructure Order’s characterization of the distinction between State and local governments’ regulatory roles versus their proprietary roles as “owners” of public resources. How should the line be drawn in the context of properties such as public rights of way (e.g., highways and city streets), municipally-owned lampposts or water towers, or utility conduits? Should a distinction between regulatory and proprietary be drawn on the basis of whether State or local actions advance those government entities’ interests as participants in a particular sphere of economic activity (proprietary),²⁸ by contrast with their interests in overseeing the use of public resources (regulatory)?²⁹ What about requests for proposals (RFPs) or contracts involving state or local entities? We invite commenters to identify any States or local governments that have imposed restrictions on the installation of new facilities or the upgrading of existing facilities in public rights of way, and describe those restrictions and their impacts. Do such restrictions have characteristics or effects that are comparable to moratoria on processing applications?³⁰.
    

1. Unreasonable Discrimination

97. 
    We seek comment on whether certain types of facially neutral criteria that some localities may be applying when reviewing and evaluating wireless siting applications could run afoul of Section 253, Section 332(c)(7), or another provision of the Act.³¹ For instance, we ask commenters to identify any State or local regulations that single out telecom-related deployment for more burdensome treatment than non-telecom deployments that have the same or similar impacts on land use, to explain how, and to address whether this type of asymmetric treatment violates Federal law.
    
98. 
    We also seek comment on the extent to which localities may be seeking to restrict the deployment of utility or communications facilities above ground and attempt to relocate electric, wireline telephone, and other utility lines in that area to underground conduits. Obviously, it is impossible to operate wireless network facilities underground.³² Undergrounding of utility lines seems to place a premium on access to those facilities that remain above ground, such as municipally-owned street lights. Is there a particular way that Section 253 or 332(c)(7) should apply in that circumstance? More generally, we seek comment on parties’ experience with undergrounding requirements, including how wireless facilities have been treated in communities that require undergrounding of utilities. We also seek comment on whether and how the Communications Act applies in such instances. For instance, may localities deny applications to construct new above-ground wireless structures in such areas, or deny applications to install collocated equipment on structures that may eventually be dismantled? Could “undergrounding” plans “prohibit or have the effect of prohibiting” service by causing suitable sites for wireless antennas to become scarce? We seek comment on parties’ experiences with undergrounding generally.
    
99. 
    Section 332(c)(7)(B)(i)(I) prohibits States and localities from unreasonably discriminating among providers of “functionally equivalent services.”³³ We seek comment on whether parties have encountered such discrimination, and ask that they provide specific examples. We also seek comment on what constitutes “functionally equivalent services” for this purpose. For instance, should entities that are considered to be utilities be viewed as an appropriate comparison? For the limited purpose of applying Section 332(c)(7)(B)(i)(I), can wireless and wireline services be considered “functionally equivalent” in some circumstances? Which types of discrimination are reasonable and which are unreasonable?
    

4. procedural matters

   1. Initial Regulatory Flexibility Analysis

100. 
     Pursuant to the Regulatory Flexibility Act (RFA),¹ the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in this NPRM. The IRFA is set forth in the Appendix. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. The Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).²
     

1. 
   
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   attachmatch -> Before the Federal Communications Commission Washington, D
   attachmatch -> Before the Federal Communications Commission Washington, D
   attachmatch -> Before the Federal Communications Commission Washington, D
   attachmatch -> Before the Federal Communications Commission Washington, D
   attachmatch -> Before the Federal Communications Commission Washington, D
   attachmatch -> Federal Communications Commission fcc 15-77 Before the Federal Communications Commission
   attachmatch -> Statement of commissioner ajit pai
   
   
   
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