Federal Register: December 3, 1998 (Volume 63, Number 232)NoticesPage 66806-66809From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr03de98-56

FEDERAL COMMUNICATIONS COMMISSION

FCC 98-295Preemption of State or Local Statutes; Suggested Guidelines for Petitions for Ruling Under Section 253 of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Notice.

SUMMARY: The Commission has released a Public Notice which suggests various procedural guidelines for filing petitions for Commission action pursuant to section 253 of the Communications Act. Section 253 requires the Commission, subject to enumerated exceptions, to preempt the enforcement of any state or local statute, regulation, or legal requirement that prohibits or has the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. These suggested guidelines are designed to assist petitioners and commenters in preparing their submissions to the agency.

FOR FURTHER INFORMATION CONTACT: Jordan Goldstein, Common Carrier Bureau, (202) 418-1500.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

OMB Control Number: 3060-0859.

Expiration Date: 5/31/99.

Title: Suggested Guidelines for Petitions for Ruling under Section 253 of the Communications Act.

Respondents: Business or other for-profit; federal government; and state, local or tribal government.

Public reporting burden for the collection of information is estimated as follows:

No. of

Annual hour Information collection

respondents burden per Total annual (approx.) response

burden

Filing of petitions for preemption..............................

20

125

2,500 Submission of written comments on petitions.....................

60

63

3,780

Total Annual Burden: 6,280.

Frequency of Response: On occasion.

Estimated Costs per Respondent: $0.

Needs and Uses: The Commission released a Public Notice (FCC 98- 295) which suggests various procedural guidelines relating to the Commission's processing of petitions for preemption pursuant to section 253 of the Communications Act of 1934, as amended. The Commission will use the information to discharge its statutory mandate relating to the preemption of state or local statutes or other state or local legal requirements.

[Page 66807]Synopsis of Public Notice

This Public Notice suggests procedural guidelines for filing petitions for Commission action pursuant to section 253 of the Communications Act of 1934, as amended 47 U.S.C. 253 (Act). These suggested guidelines are designed to assist petitioners and commenters in preparing their submissions to the agency. Other than the mechanical filing requirements described below in Section D, however, these guidelines are not intended to limit the content or form of information that petitioners or commenters submit.

A. Background

Section 253 requires the Commission, subject to enumerated exceptions, to preempt the enforcement of any state or local statute, regulation, or legal requirement that prohibits or has the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. To date, the Commission has received over 25 petitions seeking preemption under section 253.

These petitions involve not only competition issues but also the relationships among the federal, state and local levels of government. In order to ensure that, on the one hand, competition is not unduly delayed by requirements that retard vigorous market entry, while, on the other hand, the vital role of state and local authorities in advancing the interests of their citizens is acknowledged, the Commission must undertake full and expeditious examination of the issues raised in each petition.

Section 253 petitions necessarily involve state or local statutes, regulations, ordinances, or other legal requirements that likely are unfamiliar to the Commission. In order to render a timely and informed decision, petitioners and commenters should submit relevant information sufficient to describe the legal regime involved in the controversy and to establish the factual basis necessary for decision. Factual assertions should be supported by credible evidence, including affidavits, and, where appropriate, studies or other descriptions of the economic effects of the legal requirement that is the subject of the petition.

In preparing their submissions, parties should address as appropriate all parts of section 253. In particular, parties should first describe whether the challenged requirement falls within the proscription of section 253(a); if it does, parties should describe whether the requirement nevertheless is permissible under other sections of the statute, specifically sections 253(b) and (c). Lastly, parties should submit information on whether and how the Commission could tailor a decision to preempt the enforcement of an offending legal requirement only ``to the extent necessary to correct such violation or inconsistency'' as required by section 253(d).

B. Content of Petitions and Replies

The Commission realizes that it cannot anticipate every type of section 253 preemption request that may be filed. However, we identify below specific issues that we suggest petitioners should include when addressing whether a legal requirement violates the statute. While not all questions will be relevant to all petitions, the Commission suggests that section 253 petitions incorporate answers to the following questions, as applicable, in order to establish a complete factual record relating to section 253(a):

  (1) What is the statute, regulation, ordinance, or legal requirement that is being challenged? Please provide a copy. Identify and describe any other pending court or state regulatory actions relating to the enforceability of the challenged statute, regulation, or legal requirement.

  (2) What specific telecommunications service or services is the petitioner prohibited or effectively prohibited from providing?

  (a) What other specific entities, if any, are prohibited or effectively prohibited from providing the service?

  (b) What group or groups of actual or potential customers are being denied access to the service or services?

  (3) What are the factual circumstances that cause the petitioner to be denied the ability to offer the relevant telecommunications service or services?

  (a) Does the statute, regulation, ordinance, or legal requirement categorically ban provision of a telecommunications service?

  (b) Does the statute, regulation, ordinance, or legal requirement have the effect of prohibiting the ability of an entity to provide a telecommunications service? Petitioner should describe with particularity how the challenged statute, regulation, ordinance, or legal requirement has such an effect. For example, if the petitioner alleges that a statute, regulation, ordinance, or legal requirement has the effect of prohibiting the petitioner's ability to provide a telecommunications service because the challenged statute, regulation, ordinance, or legal requirement raises petitioner's costs, the petition should explain: (1) how the statute, regulation, ordinance, or other legal requirement prohibits or has the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service, (2) whether the statute does so in a discriminatory manner; (3) whether price levels in the market preclude recovery of any such additional costs; and (4) any other factors that demonstrate that the challenged statute, regulation, ordinance, or legal requirement has the alleged effect.

  (4) Have other governmental entities adopted similar requirements? If so, are there conflicting requirements imposed on service providers (either in law or practice)? Are there cumulative adverse effects of requirements flowing from multiple local regulatory regimes? If so, the petitioner should describe with particularity how the cumulative adverse effects prohibit the ability of an entity to provide a telecommunications service.

  (5) Assuming the Commission determines that modification of the challenged statute, regulation, ordinance, or legal requirement is required, what is the least intrusive action necessary to correct the alleged violation of section 253?

Responding parties, in addition to addressing issues raised in the petition, may also rely on section 253 (b) or (c), which identify certain State and local government actions as permissible even though they may be the basis for the alleged violation of section 253(a). In order to help the Commission determine whether preemption of the challenged statute, regulation, ordinance, or legal requirement is within the scope of Commission jurisdiction, parties commenting on the applicability of sections 253 (b) or (c), and especially parties seeking to invoke these sections, should include answers to the following questions in their filings:

  (1) If the requirement is imposed by a local government entity, what is the source of its authority (e.g., state constitution, statute, delegation of state power)?

  (2) Is the challenged statute, regulation, ordinance, or legal requirement:

  (a) necessary to preserve and advance universal service consistent with section 254 of the Act and does it do so in a competitively neutral and nondiscriminatory manner;

  (b) necessary to protect the public safety and welfare and does it do so in a competitively neutral and nondiscriminatory manner;

  (c) necessary to ensure the continued quality of telecommunications services and does it do so in a competitively

[Page 66808]neutral and nondiscriminatory manner; and

  (d) necessary to safeguard the rights of consumers and does it do so in a competitively neutral and nondiscriminatory manner? Please explain.

  (3) Does the challenged statute, regulation, ordinance, or legal requirement pertain to the management of, or compensation for access to, rights-of-way? If so, please explain the nature of any relationship to rights-of-way management or compensation. If compensation is involved, is it fair and reasonable and required on a competitively neutral and nondiscriminatory basis?

Parties asserting that a statute, regulation, ordinance, or legal requirement is necessary to achieve the objective at issue should describe and support this claim with particularity, including, but not limited to, a description of the objective sought to be achieved and of the inadequacies of less competitively restrictive means of achieving the objective.

Parties asserting that a statute, regulation, ordinance, or legal requirement is not necessary to achieve the objective at issue should describe and support this claim with particularity, including, but not limited to, a description of less competitively restrictive means of achieving the objective.

Parties asserting that a statute, regulation, ordinance, or legal requirement is discriminatory or not competitively neutral should describe and support such claim with particularity.

Because section 253(d) requires notice and an opportunity for public comment before Commission action under section 253, commenters wishing to challenge additional provisions, even though related to those identified in the petition, should initiate their own petitions to address those provisions they believe appropriate.

C. Time Frame for Proceedings

Once a petition has been filed(often styled as a request for declaratory ruling), the relevant Bureau will issue a public notice establishing the specific due dates for the various filings set forth below. We anticipate the affected government entity and interested third parties generally will have approximately 30 days to respond to the petition. If the matter presented in the petition is of an urgent nature, the Bureau may, where it determines good cause exists, require less than 30 days for responses. To file comments (or any other filing set forth below) in a section 253 proceeding, commenters should follow the applicable procedures outlined below.

All participants in the proceeding--the petitioner, interested third parties, the relevant State or local government entity--may file a reply to any comment made by any other participant. Such replies generally will be due approximately 15 days after comments are due. The specific due date for replies will be set forth in the Initial Public Notice; the time period for replies may be less than 15 days if the relevant Bureau has determined that expedited review is appropriate. Reply comments may not raise new arguments that are not directly responsive to arguments other participants have raised, nor may the replies be repetitive of arguments made by that party in the petition or initial comments.

D. Filing Requirements For Petitions, Responses and Comments

Petitioners should file an original and not less than six copies of each section 253 request. The name of the petitioner, the date the petition is filed, and the State and city (if applicable) to which it relates should appear in the upper right hand corner of each page of the petition. We encourage petitioners to also submit requests on a 3.5 inch computer diskette formatted in WordPerfect 5.1. All filings submitted on diskette will be posted on the internet for public inspection at http://www.fcc.gov.

If the petitioner wants each Commissioner to receive a copy of the section 253 request, the petitioner should file an original plus eleven copies. The original, all copies, and any diskette should be sent to the Office of the Secretary, Federal Communications Commission, Washington, DC 20554. The petitions will be available for public inspection during regular business hours in the reference room of the bureau to which the petition has been assigned, Washington, DC 20554. The applicant should also submit a copy of the request simultaneously to the Commission's copy contractor, International Transcription Services, Inc., 1231 20th Street, NW, Washington, DC 20036. In addition, the petitioner should simultaneously provide a copy of the petition to each state or local government entity to which the petition applies and reference such service in the petition. If the petition involves a local statute, regulation, ordinance, or legal requirement, the petitioner should also serve the appropriate state entity and reflect this service in the petition. Thereafter, each party, including the petitioner and each respondent state or local government entity, should serve all other parties with a copy of its pleadings and any filing made pursuant to the Commissions ex parte rules.

E. Ex Parte Rules

Because of the broad policy issues involved, and because these proceedings are generally declaratory ruling proceedings, section 253 petition proceedings initially will be considered ``permit-but- disclose'' proceedings. Accordingly, ex parte presentations will be permitted (unless the Commission designates a particular proceeding ``restricted''), provided they are disclosed in conformance with Commission ex parte rules. In addition, parties should notify all parties of any ex parte communications.

The Commission expects to be kept informed, through ex parte presentations, of any discussions between the petitioner and the relevant state or local entity regarding resolution of the issues raised in the petition.

Notwithstanding the above, the Commission may, by subsequent public notice, prohibit all communication with Commission personnel regarding the petition during a defined period preceding the anticipated release date of the Commission's order regarding the petition.

FCC Notice to Individuals Required by the Paperwork Reduction Act

Pursuant to section 253 of the Communications Act of 1934, the Commission, subject to enumerated exceptions, must preempt the enforcement of any state or local statute, regulation, or legal requirement that prohibits or has the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. Parties may file petitions seeking preemption under section 253. The Commission must provide an opportunity for public comment. All of the information collected would be used to determine whether the state or local government has imposed a legal requirement that violates section 253 of the Act. Obligation to respond to this collection of information is not mandatory.

The public reporting for this collection of information is estimated to average 78.5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the required data, and completing and reviewing the collection of information. If you have any comments on this burden estimate, or how we can improve the collection, please write to the Federal Communications Commission, AMD-PERM, Paperwork

[Page 66809]Reduction Project (3060-0859), Washington, DC 20554. We will also accept your comments on the burden estimate via the Internet if you send them to jboley@FCC.gov. Please do not send petitions to this address.

Remember--You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number or if we fail to provide you with this notice. This collection has been assigned an OMB control number of 3060-0859. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. Section 3507.

Federal Communications Commission. Magalie Roman Salas, Secretary.

FR Doc. 98-32158Filed12-2-98; 8:45 amBILLING CODE 6712-01-p