Before
the
Federal Communications
Commission
Washington, D.C.
20554
|
In the Matter of
Petition of Cingular
Wireless L.L.C. for a Declaratory Ruling that Provisions of the Anne
Arundel County Zoning Ordinance are Preempted as Impermissible Regulation
of Radio Frequency Interference Reserved Exclusively to the Federal
Communications Commission |
) ) ) ) ) ) ) ) ) |
WT
– Docket No. 02-100 |
|
|
|
|
MEMORANDUM OPINION AND ORDER
Adopted: July 3, 2003
Released: July 7, 2003
By the Chief, Wireless
Telecommunications Bureau:
TABLE OF
CONTENTS
Paragraph No.
I.
INTRODUCTION
1
II.
BACKGROUND
3
A.
History of Interference with Anne Arundel County
3
Public Safety Communications
B.
Provisions of Anne Arundel County, Maryland’s Zoning Ordinance
6
C. The
Record in this Proceeding
9
III.
DISCUSSION
11
A.
Exclusive Federal Regulation of RF Interference
12
B.
Preemption of the County’s Zoning Ordinance Provisions
18
C.
Remediation of Interference
23
IV. ORDERING
CLAUSES
28
APPENDIX: List of
Commenters
I. INTRODUCTION
1. In this
order, we find that federal law preempts provisions of the Anne Arundel County,
Maryland ("County") zoning ordinance involving radio frequency interference
(“RFI”). The provisions require
that, prior to receiving a County zoning certificate, owners and users of
telecommunications facilities must show that their facilities will not degrade
or interfere with the County's public safety communications systems. [1] The Ordinance provisions also permit the
County to revoke a zoning certificate where degradation or interference is
found. On April 23, 2002, Cingular
Wireless LLC (“Cingular”) filed a Petition for Declaratory Ruling that these
Ordinance provisions are preempted.[2] The County filed a Motion to Dismiss
Cingular's Petition claiming the courts, and not the Commission, have exclusive
jurisdiction over final zoning actions of local governments affecting the
placement, construction and modification of personal wireless service
facilities.[3]
2. For the
reasons stated below, we find that the challenged provisions of the County’s
Ordinance regulate RFI, not traditional zoning functions, and therefore are
preempted by federal law. We
therefore grant Cingular's Petition for Declaratory Ruling and deny the County's
Motion to Dismiss. At the same
time, we remain concerned about interference to the County’s public safety
communications system and we expect that the parties will continue to work
cooperatively to resolve these problems, consistent with our previous
guidance.[4] We therefore require the County,
Cingular and Nextel Communications, Inc. (“Nextel”) to report to the Commercial
Wireless Division of the Wireless Telecommunications Bureau (Bureau) in 30 and
90 days after release of this Order to describe the progress of mitigation
efforts in the County.
II. BACKGROUND
A.
History of Interference with Anne Arundel County Public Safety
Communications
3. In 1989, the County began
operating a public safety communications system in the 800 MHz band, which is
used by the police department, sheriff’s department, and fire department.[5] In 1997, the County began experiencing
radio frequency interference to its public safety communications system from
certain wireless telecommunications networks.[6] In late 1998, the County wrote to the
Commission concerning these problems, and the County and the carriers
subsequently met several times with Commission staff.[7] The meetings were helpful in
establishing productive working relationships and addressing many of the
County’s interference concerns.
Nonetheless, due to the engineering challenges created by operating
public safety and commercial systems on nearby frequencies, some interference
issues inevitably remained.[8]
4. In 1999, the County
determined that because its system was 10 years old and in order to help remedy
some of the interference problems, it would need to acquire a new public safety
communications system.[9] In March 2001, the County engaged a
consultant for a needs analysis concerning the new system.[10] Testing by the consultant revealed 61
existing “dead spots” in areas near commercial radio station antennas, where the
County experienced failures in its public safety communications.[11] According to the County, the dead spots
put police officers, firefighters and paramedics in difficult and unsafe
situations.[12] The consultant found the interference
was primarily caused by Nextel and secondarily by Cingular and that the
interference centered around Nextel and Cingular’s tower sites.[13] According to the consultant, significant
carrier input was required for the configuration of the County’s new system
because the causes of interference can vary considerably and cannot be remedied
by a single solution.[14]
5. The
County approached both Nextel and Cingular regarding the interference. Nextel was reportedly receptive to
assisting the County with mitigating interference by providing transmission
information, assisting in site testing, reconfiguring antennas, changing power
levels, installing filters, and engineering other methods to decrease
interference.[15] However, according to the County,
Cingular initially declined to provide interference assessment information and
participate in interference testing.[16] Concerned that the $15 million expended
on its proposed new system might be wasted, the County determined that any
future upgrade of its public safety system was dependent on development of a
mechanism to mitigate interference concerns from future telecommunications
facilities placements.[17]
B. The
Challenged Provisions of Anne Arundel County, Maryland's Zoning
Ordinance
6. On
January 22, 2002, the County adopted amendments to its zoning Ordinance, which
became effective on March 15, 2002, for new facilities and September 11, 2002,
for existing facilities.[18] These amendments provide that prior to
receiving a County zoning certificate, owners and users of commercial
telecommunications facilities must show that their facilities will not degrade
or interfere with the County’s public safety radio systems.[19] The Ordinance defines
“telecommunications facilities” to include towers, antennas, microwave dishes,
and in-building wireless communications systems.[20] The Ordinance requires an owner or user
to obtain a zoning certificate prior to “using or altering” any
telecommunications facility and defines the term “altering” to include “any
change in configuration, transmit frequency, or power level.”[21] The Ordinance requires each applicant to
obtain a certification from an independent consultant acceptable to the County,
before constructing, operating or altering any facility, that the facility or
the applicant’s use of the facility will not degrade or interfere with the
County’s public safety communications system.[22] In addition, each owner and user must
submit, on an annual basis, a certification from an engineer acceptable to the
County that the radio frequency emissions from each facility meet the applicable
Commission standards and guidelines.[23] The Ordinance provides that where a
facility or use of a facility degrades or interferes with the County’s public
safety communications system, or if the requisite certifications are not made,
the zoning certificate may be revoked.[24]
7. Since the time the Ordinance provisions
were enacted, the County and commercial licensees have engaged in discussions
concerning possible future revisions of the Ordinance.[25] As an outgrowth of these discussions,
the County made revisions to certain provisions of the Ordinance other than
those addressing RFI.[26] The record also indicates that the
County has instituted a number of new measures to reduce interference and ease
the regulatory burden on commercial carriers, including: 1) eliminating in
practice the requirement of independent engineer certifications, thereby
allowing carrier staff engineers to supply all required certifications; 2)
completing a spectrum swap agreement with Nextel, which would relocate its
public safety spectrum to the far ends of the bands utilized by commercial
carriers; and 3) substantially upgrading its public safety system.[27] The Ordinance’s provisions relating to
RFI, however, remain substantively unchanged.
8. Although
the record is unclear regarding when it began to do so, it is undisputed that
the County is enforcing the challenged provisions.[28] While a number of carriers operating in
the County have filed some required certifications,[29]
several carriers are not doing so.[30] Stating the impossibility of compliance
with the Ordinance, Nextel and Cingular, neither of which has ever furnished
certifications, assert that the County’s implementation of its Ordinance is
actively obstructing their communications service operations.[31] Specifically, they claim that the County
is refusing to issue permits for new tower sites, as well as use permits for
existing sites, because their applications do not contain the non-interference
certification.[32] Cingular has also advised that it has
received correspondence stating that the County will impose fines and penalties
for Cingular’s failure to obtain a use permit with the required certification
for an existing facility for which no application was ever filed.[33]
C. The
Record in this Proceeding
9.
Cingular’s Petition was placed on public notice on May 7, 2002. The Commission received thirteen
comments and four reply comments, the majority of which supported Cingular’s
Petition.[34]
After the comment period closed, four local governments, the City of Cumberland,
Maryland, Village of Schaumburg, Illinois, City of Irvine, California, and
County of Harford, Maryland, submitted ex
parte filings generally supporting the County’s position.[35] In addition, the Local and State
Government Advisory Committee (“LSGAC”) filed a recommendation that the
Commission should refrain from preempting the Ordinance at least until after the
Commission resolves the pending rulemaking proceeding regarding RF interference
with 800 MHz public safety services.[36]
10. On May 24, 2002, the
County filed a Motion to Dismiss Cingular’s Petition, arguing that the courts,
and not the Commission, have exclusive jurisdiction over final zoning actions of
local governments. Cingular filed
an Opposition to the Motion to Dismiss maintaining that the County’s provisions
regulate RFI and therefore this matter falls within the exclusive jurisdiction
of the Commission.[37]
III. DISCUSSION
11. As described below, we
find that the challenged provisions of the County’s zoning Ordinance infringe on
the Commission’s exclusive jurisdiction over RFI and are preempted under the
doctrine of field preemption. We
therefore grant Cingular’s Petition for Declaratory Ruling. In addition, we find that because these
provisions attempt to regulate RFI, rather than traditional zoning functions,
the exclusive jurisdiction of the courts under section 332 of the Act is not
triggered. Accordingly, we deny the
County’s Motion to Dismiss. We
recognize, however, that resolution of the issue of preemption will not in
itself resolve the interference problems the County has experienced in its
public safety communications system. We expect carriers to render full
cooperation with a local government’s efforts to mitigate interference to its
public safety communications system.
Accordingly, we require the County, Cingular, and Nextel to report to the
Bureau’s Commercial Wireless Division on the status of mitigation efforts in the
County in 30 and 90 days after release of this order.
A.
Exclusive Federal Regulation of RF Interference
12. The
Supremacy Clause of Article VI of the Constitution provides Congress with the
power to preempt state law.[38] The Supreme Court has found that
Congress' preemption power extends to both state and local ordinances.[39] There are various forms of federal
preemption.[40] Express preemption occurs when the
language of the federal statute reveals an express
congressional intent to preempt state law.[41] The courts
have not found local regulation of RFI expressly preempted.[42] Field
preemption occurs when Congress has legislated comprehensively, thus occupying
an entire field of regulation and leaving no room for the States to supplement
federal law,[43]
or if an Act of Congress touches a field in which the federal interest is so
dominant that the federal system is presumed to prohibit enforcement of State
laws on the same issue.[44] The courts have identified field
preemption as the “most pertinent” of the various forms of federal preemption to
the issue of local regulation of RFI.[45] Under
field preemption, Congressional legislation and an agency’s regulations and
decisions determine whether and to what extent federal law preempts state or
local regulation.[46] Preemption may result not only from
action taken by Congress; a federal agency acting within the scope of its
Congressionally delegated authority may also preempt State regulation.[47] It is well settled that federal
regulations have the same preemptive force as federal statutes.[48]
13.
The Commission and the federal courts have consistently found that the
Commission’s authority in the area of RFI is exclusive and any attempt by State
or local governments to regulate in the area of RFI is preempted.[49] The Commission addressed this issue
almost 20 years ago in 960 Radio.[50]
In that proceeding, a local zoning board issued a conditional use
permit to an FM radio facility subject to a restriction that the applicant “not
operate the new facility so as to produce electronic interference to existing
facilities” or to TV translators.[51] In a petition for declaratory ruling,
the owner of the FM facility sought to void the requirement on the ground that
“jurisdiction to control interference over the airwaves rests exclusively with
the [Commission].”[52] The Commission found that sections 2,
301, and 303(c)-(f) of the Communications Act,[53]
taken together, “comprehensively regulate
interference, [and therefore] Congress undoubtedly intended federal regulation
to completely occupy that field to the exclusion of local and state
governments.”[54] The Commission noted that Supreme
Court[55]
and Commission[56]
precedent supported this conclusion.
The Commission further found that “any doubt about [the Commission’s]
jurisdiction to regulate interference was removed” with Congress’ statement in
the House Conference Report to the 1982 provisions of section 302 of the Act,
which provides:
The Conference Substitute is further intended
to clarify the reservation of exclusive jurisdiction to the Federal
Communications Commission over matters involving RFI. Such matters shall not be regulated by
local or state law, nor shall radio transmitting apparatus be subject to local
or state regulation as part of any effort to resolve an RFI complaint. The Conferees believe that radio
transmitter operators should not be subject to fines, forfeitures or other
liability imposed by any local or state authority as a result of interference
appearing in home electronic equipment or systems. Rather, the Conferees intend that
regulation of RFI phenomena shall be imposed only by the Commission.[57]
For these reasons, the Commission found the
local zoning board’s interference restriction on a radio station in a
conditional use permit was preempted under federal law.
14. In Mobilecomm, the former Common Carrier
Bureau applied the Commission’s rationale in 960 Radio to invalidate provisions of a
local zoning ordinance that
required a paging facility operator to notify the town's planning and zoning
commission when it changed the power and/or frequency of its transmission and
required that "[n]o operation shall be permitted which produces any perceptible
electromagnetic interference with normal radio or television reception in any
area within or without the town."[58] The Bureau recognized that although Mobilecomm involved operations in a
different service, i.e., public land
mobile service (PLMS), it was still governed by the decision in 960 Radio, which involved FM radio
broadcasting.[59] The Bureau reasoned that the sections of
the Communications Act and the legislative history that the Commission relied on
in 960 Radio governed the
interference at issue in Mobilecomm,
“since Title III of the Communications Act, including sections 301, and 303(c),
(d), (e) and (f) applies to PLMS stations such as that operated by
Mobilecomm.”[60] In preempting the ordinance, the Bureau
stated that the law establishing the Commission’s exclusive jurisdiction over
RFI “is clear” and that the local government “must look to the Commission for
interference regulation.”[61]
15. Recent
federal court decisions are consistent with the Commission’s conclusions in 960 Radio and Mobilecomm.[62] In Johnson County, for example, the Tenth
Circuit considered a local zoning provision that was very similar to the
Ordinance provisions at issue here.
In that case, the local zoning authority adopted an “interference
regulation” that prohibited wireless telecommunications towers and antennas from
operating in a manner that interfered with public safety communications.[63] The regulation also authorized the
county’s zoning authority to determine when interference existed and, after
proper notice and opportunity for a hearing, to force the offending facility to
cease operations.[64] Citing the Communications Act,[65]
Commission regulations,[66]
Commission decisions,[67]
and an informal opinion rendered by the Chief of the Commercial Wireless
Division in the same matter,[68]
the Court determined that “Congress intended federal regulation of RFI issues to
be so pervasive as to occupy the field.”[69] The Court noted that “this analysis is
consistent with decisions of virtually all courts considering RFI
preemption.” [70] For these reasons, the Court concluded
that the local regulation was void under the doctrine of field preemption.[71]
16.
Similarly, in Freeman, the
Second Circuit considered whether federal law preempted a zoning permit
condition that required the users of a communications tower to remedy any
interference with reception in homes in the area.[72] The city zoning administrator had issued
notices of violation to a radio station operator, cellular phone company, and
city fire and ambulance service, all of which used the communications tower, on
the grounds that their operations had caused interference with electronic
devices in violation of the zoning permit conditions. The city’s zoning board, however,
dismissed the notice of violation on the grounds of federal preemption. On appeal, the Second Circuit determined
that, based on an analysis of the statute,[73]
legislative history,[74]
Commission regulations[75] and Commission decisions,[76]
the field of radio frequency interference was occupied by federal law and
affirmed the zoning authority’s decision that it was preempted from enforcing
the zoning permit condition.[77] The Court reasoned that “allowing
local zoning authorities to condition construction and use permits on any
requirement to eliminate or remedy RF interference stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”[78]
17. Taken
together, these Commission and court decisions clearly establish that the
Commission has sole jurisdiction to regulate RFI, to the exclusion of provisions
in local zoning or other regulations.
B.
Preemption of the County’s Zoning Ordinance
Provisions.
18. Based
on Commission precedent in 960 Radio
and Mobilecomm, and the federal
court decisions in Johnson County and
Freeman, we find that the County’s
provisions constitute an attempt to regulate RFI and therefore are preempted
under the doctrine of field preemption.
A review of the provisions shows that their intent and effect are to
regulate the operations – not the placement, construction and modification – of
licensed facilities. [79] As in Mobilecomm, the County’s zoning
Ordinance requires all wireless carriers to obtain prior certification from the
County before constructing, operating or altering their facilities.[80] The Ordinance also gives the County,
similar to the ordinance struck down in Johnson County, unfettered discretion to
determine whether interference exists and when interference is considered
resolved, without any apparent objective standard for the determination.[81] Again similar to the Johnson County ordinance, where
interference is found, the Ordinance permits the County to revoke the zoning
permit to force the carrier to cease operations at the offending facility, even
where the facility otherwise complies with all appropriate land use
regulations.[82] The Ordinance’s requirements concerning
radio frequency engineering studies further demonstrate its focus on radio
frequency regulation rather than local land use concerns.[83] Moreover, under the Ordinance,
"facilities" are broadly defined to include not only structures that are
traditionally regulated by zoning ordinances, such as towers, antennas and
microwave dishes, but also facilities that would not normally be subject to
zoning ordinances such as in-building wireless communications systems.[84]
19. We
disagree with the County’s argument that the provisions are not a direct
regulation of RFI, but rather a “perfectly lawful effort to assure itself that a
carrier is complying with FCC standards.”[85] The County maintains that the Ordinance
contains no mechanism to order the carrier to change its chosen configuration,
transmit frequency or power level, but rather helps to assure the collection and
updating of reliable information essential to local efforts to mitigate
interference.[86] The County further states that the
Ordinance’s requirement for a zoning certificate of use when a
telecommunications facility is “altered” is not a direct regulation of RFI.[87] According to the County, it is not
attempting to substitute its own technical standards or to regulate beyond the
federal guidelines through the Ordinance. Although the County does not purport to
prescribe particular technical parameters, however, the fact remains that by
asserting authority to prohibit operation that it determines causes public
safety interference, the County is effectively regulating federally licensed
operation, much as in Johnson County
and Mobilecomm. Such regulation of operation is
different in kind from traditional zoning regulation of the physical facility
such as height limitations, setback requirements, screening or painting
guidelines, structural safety standards, and the like. [88] Therefore,
we find that the County’s Ordinance regulates beyond traditional zoning
functions and impermissibly extends into the regulation of
RFI.
20. For
similar reasons, we reject the County’s argument that the Commission lacks
jurisdiction to consider Cingular’s Petition, and we therefore deny the County’s
Motion to Dismiss. The County
argues that Cingular’s Petition should be dismissed for lack of jurisdiction
pursuant to section 332(c)(7)(B)(v) of the Act,[89]
which in most instances reserves to the courts exclusive jurisdiction over final
zoning actions of local governments affecting the placement, construction and
modification of personal wireless service facilities.[90] The County also maintains there can be
no “field preemption” because section 332(c)(7)(A) reserves to localities
authority for regulating RFI through their ability to control “the placement,
construction and modification” of telecommunications facilities, except as
expressly limited by section 332(c)(7)(B).[91] The County maintains that, under section
332, it shares authority with the Commission in the field of RFI regulation and
that because it has not been shown impossible to comply with both the
Commission’s and the County’s regulations, there can be no conflict
preemption.[92] The County further maintains that the
Tenth Circuit’s decision in Johnson
County[93]
supports its argument that jurisdiction over the instant dispute resides with
the courts and not the Commission because, in that case, the Commission’s role
was “purely advisory” and the matter was ultimately decided by the federal
courts.[94] Finally, citing decisions from the
First[95]
and Fourth Circuit Courts of Appeals,[96]
the County argues that its authority over zoning of personal wireless service
facilities extends to regulation of RFI, and that even if it were to deny a
zoning permit in a particular case, the courts have not found such action to
constitute a prohibition of wireless services in violation of section
332(c)(7).[97]
21. We find
that section 332(c)(7)(B)(v) does not limit the Commission’s jurisdiction to
consider Cingular’s Petition because the Ordinance provisions do not regulate
the “placement, construction, and modification” of facilities, and therefore do
not fall within the scope of section 332(c)(7).[98] Specifically, we disagree with the
County’s contention that under section 332(c)(7), the County “shares” authority
with the Commission to regulate RFI.
The County argues in effect that the provisions in the Telecommunications
Act of 1996 expanded local authority at the expense of the Commission by
overruling preexisting decisions that local regulation of RFI was preempted.
However, section 332(c)(7), which
is entitled "Preservation of local zoning authority," only preserves local "decisions regarding the
placement, construction, and modification of personal wireless service
facilities."[99] The Conference Report on the
Telecommunications Act of 1996 explains that "[t]he limitations on the role and
powers of the Commission under [§ 332(c)(7) ] relate to local land use
regulations and are not intended to limit or affect the Commission's general
authority over radio telecommunications, including the authority to regulate the
construction, modification and operation of radio facilities."[100] Thus, the 1996 provisions did not alter
the Commission’s general authority over radio transmissions granted by earlier
communications legislation and affirmed by existing precedent. Indeed, in Johnson County, the Court specifically
considered the same argument raised by the County and found the regulation at
issue did not involve traditional zoning authority – which concerns placement,
construction, and modification– but rather extended into radio
telecommunications, an area of exclusive Commission authority that is outside
section 332(c)(7).[101]
22. The
County’s reliance on the First Circuit’s decision in Town of Amherst v. Omnipoint Communications
Enterprises, Inc.,[102]
and the Fourth Circuit’s decision in AT&T Wireless v. City Council of
Virginia Beach,[103]
as support for its argument is misplaced.
Both cases involve traditional land use functions such as neighborhood
aesthetics and set back requirements and do not address a local government’s
authority to regulate technical matters relating to radio transmission.[104] Moreover, the County’s argument that a
land use regulation will not be preempted under section 332(c)(7) unless there
is a general prohibition of wireless services, or another statutory proscription
applies, misses the point. The
point is that the Ordinance provisions are not a regulation of the placement,
construction, and modification of facilities, but rather a regulation of
facilities operation that intrudes impermissibly into an area of exclusive
Commission authority. Thus, the
Ordinance provisions are preempted for reasons that implicate neither the
substantive provisions nor the jurisdictional limitation of section
332(c)(7). For these reasons, we
deny the County’s Motion to Dismiss.
C. Remediation of
Interference.
23.
Finally, the County and LSGAC argue that the Commission should defer
ruling on Cingular’s Petition until after the completion of the 800 MHz
interference proceeding.[105] In the 800 MHz proceeding, the
Commission is considering new methods and strategies in order to develop
long-term measures to alleviate RF interference from commercial systems.[106]
The County argues that preemption
at this time would disrupt ongoing negotiations between zoning authorities and
carriers pursuant to that proceeding.[107] The County further suggests that until
new rules pursuant to that proceeding are in place, the Ordinance is necessary
to ensure continued discussion between the carriers and the County to aid
ongoing interference mitigation.[108]
24. We
disagree that the pendency of the 800 MHz proceeding is sufficient reason to
delay action in the instant proceeding.
The Commission’s consideration of new ways to alleviate ongoing
interference has no bearing on the fact that the County’s existing requirements
unlawfully infringe on Commission jurisdiction. Moreover, the record includes ample
evidence that the Ordinance provisions are in fact impeding service in the
County, contrary to Commission policy.
For example, Cingular and other carriers recently notified the Commission
that the County is refusing to issue permits for new tower sites, as well as use
permits for existing sites, because their applications do not contain the
non-interference certification.[109] Cingular also claims that, as a direct
result of its inability to comply with the Ordinance, it has been unable to
modify certain cell sites within Anne Arundel County, causing significant delay
in the provision of wireless service.[110] Cingular has advised that it has
received correspondence from the County threatening fines and penalties for its
failure to obtain a use permit with the required certification for an existing
facility for which no application was ever filed.[111] According to another commenter, because
changes in modulation rates, bandwidth, power levels and frequencies occur in
wireless facilities on a minute-by-minute basis, the County’s RFI studies
requirement would render the telecommunications facilities on its towers
inoperable.[112]
In addition, we are concerned that
the proliferation of similar but potentially inconsistent local government
regulations across the nation could impose substantial costs that would retard
the spread of wireless systems.[113]
25. At the
same time, the parties do not lack means to address interference issues in the
near term. Pending resolution and
implementation of the 800 MHz proceeding, the Bureau has publicized a structure
for interference mitigation through the Best Practices Guide, which was compiled
by an outside working group of experts and is designed to provide a short- to
mid-term framework for local governments and carriers to address instances of
commercial interference with 800 MHz public safety systems.[114] Based on the record, it appears that the
technical staffs of the County and the carriers are currently addressing
interference issues as contemplated by the Best Practices Guide.[115] For example, Cingular works with the
County and coordinates with other carriers to resolve any interference with the
County’s public safety system caused by Cingular’s operations.[116] The record also indicates that Cingular
has designated an RF engineering contact to coordinate with the County and to
provide the County site data, internal company interference test data,
configurations to optimize sites for reduced interference, and operational dates
for new sites.[117] Cingular has reported that it regularly
monitors for potential interference cases through a national website and that
when it learns of a potential case of interference, the company responds to the
relevant parties, often before Cingular’s involvement with the interference
becomes known.[118] As a result of those and other efforts,
the CMRS carriers and the County have reduced the 61 dead spots claimed in the
County’s original filings to 21.[119]
The Commission is working expeditiously toward measures in the 800 MHz
proceeding that we hope will help alleviate many current interference
issues. Nonetheless, in order to
assure that interference problems in the County are addressed on a timely basis,
we expect the parties to continue to cooperate in their mitigation efforts
consistent with the Best Practices
Guide.
26. While
we are encouraged by the progress to date and evidence of ongoing cooperation,
we share the County’s concern that Cingular, Nextel, and other carriers remain
committed partners with the County in ongoing interference mitigation
efforts. In particular, we note
indications in the record that Cingular in the past has not always cooperated
fully in the County’s efforts to resolve interference problems with its public
safety communications network.[120] Particularly in light of recent events
and the nation’s heightened concern regarding homeland security, we expect
carriers will make every effort to assist local governments addressing public
safety interference issues, and we are committed to taking an active role where
necessary to assure that such cooperation occurs. Therefore, we direct the County,
Cingular and Nextel to report to the Bureau’s Commercial Wireless Division in 30
and 90 days after the release of this Order to describe the progress of
mitigation efforts in the County.
We expect that these reports will show continued concerted efforts to
address remaining instances of interference with the County’s public safety
communications system.
IV. ORDERING
CLAUSES
27. Accordingly, IT IS
ORDERED that, pursuant to Sections 2(a), 4(i), 301, 302(a), 303(c), 303(d),
303(e), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. §§ 152(a), 154(i), 301, 302(a), 303(c), 303(d), 303(e), 303(f), 303(r),
and section 1.2 of the Commission’s rules, 47 C.F.R. § 1.2, the Petition filed
by CINGULAR WIRELESS LLC on April 23, 2002, is GRANTED.
28. IT IS FURTHER ORDERED
that the Motion to Dismiss filed by ANNE ARUNDEL COUNTY, MARYLAND, on June 3,
2002, is DENIED.
29. IT IS FURTHER ORDERED
that Anne Arundel County, Maryland, Cingular Wireless LLC, and Nextel
Communications Inc. SHALL FILE reports with the Commercial Wireless Division of
the Wireless Telecommunications Bureau regarding mitigation efforts in the
County 30 and 90 days after release of this order. We encourage the parties to file their
reports jointly. Three copies of
each report should be addressed to Gary Oshinsky, Commercial Wireless Division,
Wireless Telecommunications Bureau, Federal Communications Commission, 445
12th St. SW, Washington, D.C. 20554.
30. This action is taken by
the Chief, Wireless Telecommunications Bureau, pursuant to authority delegated
by Section 0.331 of the Commission’s rules. 47 C.F.R. § 0.331.
FEDERAL COMMUNICATIONS COMMISSION
John B. Muleta
Chief,
Wireless Telecommunications Bureau
APPENDIX
LIST OF
COMMENTERS ON CINGULAR’S PETITION
Comments