FCC Pre-empts Local Government's Attempt to Regulate Radio Frequency Interference; Requests Comment on County's Appeal by Sept. 26, 2003

In recent years, concerns over radio frequency interference (“RFI”) with local public safety and emergency communications systems have prompted some state and local governments to attempt to regulate RFI. This has spurred an ongoing debate over the power of local authorities to regulate use of the airways. On July 7, 2003, the FCC’s Wireless Telecommunications Bureau (the “Bureau”) released its Memorandum Opinion and Order In The Matter of Petition of Cingular Wireless LLC 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 (WTDocket No. 02-100) (the “Order”), rejecting local regulation of RFI on the grounds of federal preemption.

Anne Arundel County, Maryland (“County”) had adopted a zoning ordinance that required owners and users of telecommunications facilities to show that their facilities would not degrade or interfere with the County’s public safety communications systems in order to receive a zoning certificate from the County. The ordinance also allowed the County to revoke a zoning certificate where degradation or interference was subsequently found.

Cingular challenged the County’s ordinance at the Federal Communications Commission, filing a Petition for a Declaratory Ruling that sought a declaration by the Commission that the regulation of RFI was a field exclusively reserved for the FCC and therefore, the County ordinance was preempted. In response, the County filed a motion to dismiss claiming that courts, not the Commission, have exclusive jurisdiction over final zoning actions of local governments that affect the placement, construction, and modification of personal wireless service facilities.

The Order specifically finds that the challenged provisions of the County ordinance infringe upon the Commission’s exclusive jurisdiction over RFI and are preempted under the doctrine of field preemption. In addition, the Order finds that because the provisions attempt to regulate RFI, rather than “traditional zoning functions,” Section 332 of the Telecommunications Act, which gives courts exclusive jurisdiction over final zoning actions of local governments affecting the placement, construction and modification of personal wireless service facilities, is not triggered.

However, the Order does note that the Commission remains concerned about interference to the County’s public safety system and expects the parties to continue to work cooperatively to resolve the problems. Therefore, the Order requires that Cingular, Nextel Communications Inc. and the County report to the Commercial Wireless Division of the Bureau in 30 and 90 days following the release of the Order to describe the progress of mitigation efforts. Cingular and Nextel were identified as part of the interference problem due to their use of spectrum in 800 MHz range, close to the County’s emergency communications system. In compliance with the Order, on Aug. 6, 2003, several wireless carriers submitted a report describing the mitigation efforts undertaken to that date and those planned for the future; Nextel filed a separate letter describing its mitigation efforts and referring to the broader issue of interference in the 800 MHz spectrum. The County submitted a letter supplementing the report that essentially agreed with the carriers’ description of the mitigation efforts.

On Aug. 6, 2003, the County filed an Application for Review of the Bureau’s Order to the full Commission. The Application for Review challenges the basic premise of the Order, claiming that the Commission’s authority over RFI cannot be exclusive where the Commission’s authority provides no effective remedy for the harm. The County also reiterates its claim that the courts, not the Commission, have jurisdiction over this matter.

The Commission is accepting comments on the appeal until Sept. 26, 2003. If you would like us to assist in preparing such comments, please contact us at your earliest opportunity.