News media information 202 / 418-0500 Fax-On-Demand 202 / 418-2830 Internet: http://www.fcc.gov ftp.fcc.gov***************** ***************** ******************** ** NOTICE ********************************* *********************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ********************************* ******************************** PUBLIC NOTICE Federal Communications Commission 1919 M St., N.W. Washington, D.C. 20554 DA 97-2539 December 3, 1997 PUBLIC COMMENT INVITED WIRELESS TELECOMMUNICATIONS BUREAU SEEKS COMMENT ON PETITION FOR DECLARATORY RULING OF 360§ COMMUNICATIONS COMPANY Comment Date: January 6, 1998; Reply Date: January 21, 1998 On October 27, 1997, 360§ Communications Company (360§) filed a Petition for Declaratory Ruling ("Petition"). 360§ seeks a declaratory ruling by the Wireless Telecommunications Bureau that Section 332(c)(7)(B)(iv) of the Communications Act preempts state courts from regulating or enjoining the placement or construction of cellular facilities based upon radio frequency (RF) emission concerns, where such facilities comply with federal emission regulations. 360§ is a wireless telecommunications company which planned to provide cellular service pursuant to a Commission license in Franklin County, Texas. After 360§ began construction on a new transmission tower in early 1996, a group of area residents filed suit in the 8th Judicial District Court of Texas to enjoin construction of the tower and to claim damages for nuisance from alleged harmful effects of RF emissions. The trial court granted a temporary injunction to halt construction of the tower. The Texas Court of Appeals overturned the injunction and returned the issue to the trial court. The 8th Judicial District Court of Texas subsequently issued an order dated September 29, 1997, deferring the matter to the Commission. 360§ has requested a declaratory ruling by the Commission that the plain language and legislative history of Section 332(c)(7)(B)(iv) unambiguously preempts state court actions limiting the construction of cellular facilities based on RF emission concerns, where such facilities comply with federal emission regulations. In a related proceeding, the Commission is considering procedures for reviewing requests for relief, filed pursuant to Section 332(c)(7)(B)(iv)-(v) of the Communications Act, from state and local regulation of the placement, construction, or modification of personal wireless service facilities based upon the environmental effects of RF emissions. In its Notice of Proposed Rulemaking, released on August 25, 1997 (FCC 97-303), the Commission cited the increase in local siting disputes and local governments' desires to be able to confirm whether individual personal wireless service facilities comply with the Commission's RF emissions guidelines. However, that proceeding does not directly raise the issue raised by 360§, namely, whether state courts are precluded from taking actions involving the siting of personal wireless service facilities that are based upon the environmental effects of RF emissions. Interested parties may file comments on 360§'s petition no later than January 6, 1998. Parties interested in submitting reply comments must do so no later than January 21, 1998. All comments should reference 360§'s Petition, DA 97-2539, and an original and four copies should be filed with the Office of Secretary, Federal Communications Commission, 1919 M Street, N.W., Room 222, Washington, DC 20554. A copy of each filing should be sent to International Transcription Service, Inc. (ITS), 1231 20th Street, N.W., Washington, D.C. 20036, (202) 857-3800, and Scott A. Mackoul, Federal Communications Commission, Wireless Telecommunications Bureau, Commercial Wireless Division, Policy and Rules Branch, 2100 M Street, N.W., Room 7012, Washington, D.C. 20554. Parties are encouraged to submit comments and reply comments on diskette for possible inclusion on the Commission's Internet site so that copies of these documents may be obtained electronically. Such diskette submissions would be in addition to and not a substitute for the formal filing requirements presented above. Parties submitting diskettes should submit them to Scott A. Mackoul, Federal Communications Commission, Wireless Telecommunications Bureau, Commercial Wireless Division, Policy and Rules Branch, 2100 M Street, N.W., Room 7012, Washington, D.C. 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible form using Word Perfect 5.1 for Windows software. The diskette should be submitted in "read only" mode, and should be clearly labelled with the party's name, proceeding, type of pleading (comment or reply comment) and date of submission. The full text of all comments and reply comments will be available for inspection and duplication during regular business hours in the Public Reference Room, 2025 M Street, N.W., Room 5608, Washington, D.C. 20554. Copies may also be obtained from ITS, 1231 20th Street, N.W., Washington, D.C. 20036, (202) 857-3800. Pursuant to Section 1.1206(b)(4) of the Commission's Rules, 47 C.F.R.  1.1206(b)(4), this proceeding will be conducted as a permit-but-disclose proceeding in which ex parte communications are permitted but subject to disclosure. For further information, contact Scott A. Mackoul, Federal Communications Commission, Wireless Telecommunications Bureau, Commercial Wireless Division, Policy and Rules Branch, at (202) 418-7240. -FCC-