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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In the Matter of                )
                                )
Petition of US West for a Declaratory)  CWD 96-16
Ruling that Roseville, Minnesota,)
Ordinances Inhibit Entry of CMRS)
Providers In Contravention of the)
Communications Act              )
                                )
                                 
                  MEMORANDUM OPINION AND ORDER


   Adopted:  March  23, 1999            Released:  March  23, 1999
By the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau:

     1.  On September 12, 1994, the City of Roseville, Minnesota (the City) enacted two ordinances.  Under
the first of these ordinances (the Franchise Ordinance), any commercial mobile radio service (CMRS) provider
offering cellular-type services was required to obtain a franchise from the City before it could install wireline
transport facilities in public rights-of-way or on City property.  In order to obtain a franchise, an applicant was
required to submit a response to a request for proposal which the City Council would evaluate according to
specified criteria.  In addition, the Franchise Ordinance imposed several conditions on franchisees.  Under the
second ordinance (the Permit Ordinance), which was to take effect only if the first ordinance were declared
invalid, any CMRS provider that used any City property was required to obtain a permit and pay fees based
both on its number of cell sites and on its gross revenues. 

     2.  On May 23, 1995, US West, Inc. (US West) filed a Petition for Declaratory Ruling (the "US West
Petition") asking the Commission to declare that these two ordinances were inconsistent with, and therefore
preempted by, Section 332(c)(3) of the Communications Act of 1934, as amended (the "Communications
Act").  On September 21, 1995, the Commission placed US West's petition on public notice.  Fourteen parties
filed comments and six parties filed reply comments.  Subsequently, on March 5, 1996, US West filed a
supplemental letter (the "US West Supplement") addressing the effect on its petition of the newly enacted
Telecommunications Act of 1996.  On September 30, 1996, the Commission sought public comment on the
US West Supplement.  Six parties filed additional comments.  In addition, between March and May of 1997,
the Commercial Wireless Division sought and received additional information from the parties.

     3.  On May 9, 1997, the State of Minnesota amended its statutes governing utilities to include detailed
provisions governing local regulation of the use of public rights-of-way by telecommunications carriers.  The
legislature found that "it is in the state's interest that the use and regulation of public rights-of-way be carried
on in a fair, efficient, competitively neutral, and substantially uniform manner, while recognizing such
regulation must reflect the distinct engineering, construction, operation, maintenance and public and worker
safety requirements, and standards applicable to various users of public rights-of-way."  Accordingly, the
statute authorizes local government units to "manage [their] public rights-of-way and to recover [their] rights-
of-way management costs," and it defines with particularity the management powers that local governments
may exercise, the costs that they may recover, and the manner in which they shall determine and impose fees
to recover those costs.  Finally, the statute expressly provides that in managing and imposing fees for use of
the public rights-of-way, a local government may not "(1) unlawfully discriminate among telecommunications
right-of-way users; (2) grant a preference to any telecommunications right-of-way user; (3) create or erect any
unreasonable  requirement for entry to the public rights-of-way by telecommunications right-of-way users; or
(4) require a telecommunications right-of-way user to obtain a franchise or pay for use of the right-of-way." 
Following the passage of the statute, on October 27, 1997, the City enacted Ordinance No. 1189 repealing the
Franchise and Permit Ordinances.  

     4.  Because the City has now repealed both the Franchise and Permit Ordinances, we conclude that
the specific dispute between US West and the City is moot.  We therefore dismiss the US West Petition. 

     5.  Accordingly, IT IS ORDERED, pursuant to sections 4(i) and 4(j) of the Communications Act of
1934, as amended, 47 U.S.C.  154(i) and (j), and section 1.2 of the Commission's rules, 47 C.F.R.  1.2, that
the Petition for Expedited Declaratory Ruling filed by US West, Inc., on May 23, 1995, is DISMISSED AS
MOOT.

     6.  This action is taken pursuant to authority delegated in section 0.331 of the Commission's rules, 47
C.F.R.  0.331.

                         FEDERAL COMMUNICATIONS COMMISSION 



                         
                         Steven E. Weingarten
                         Chief, Commercial Wireless Division