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P7P xy.f81,f_ p^7z8wC;,[AXw P7XPy7zC;,ZXz_ p^7X{V"G($,hG P7hP|H<!, ,< P7,PT}2}CC,-RX}x7XX?xxx,Ghx6Nh ;XH&~6uC;,^/Xu&_ x$&7XX &z-b81,^b&_ x$&7Xd4wC;,yXw*0 xM7X xP- X   -U X-  #XP\  P6Q[AXP#Federal Communications Commission` (#QFCC 97296 ă  yxdddy -l à  yO-(##Xw P7[AXP##c P7P# (# (# (#OsBefore the Federal Communications Commission  yO-)jWashington, D.C. 20554 l  Y@-lUX` hp x (#%'0*,.8135@8:Action would be required within 30 days with respect to requests to relocate existing  Ubroadcast transmission facilities from a currently approved location to another location  Uwithin 300 feet, to consolidate two or more broadcast transmission facilities at a common  U[tower or other structure or to increase the height of an existing tower. All other requests  Y4- UZwould have to be acted upon within 45 days.0@4 xP- v 0ԍCongress addressed the overlap between state and local and federal regulatory authority over tower siting  d(#in the context of personal wireless services facilities in the Telecommunications Act of 1996, P.L. No. 104104,  d(#y110 Stat 56 (1996), codified at 47 U.S.C.  151 et seq. ("1996 Telecommunications Act"). The statute does not,  d(#yhowever, set out a specific time frame within which a state or local government must act on a request, rather, it  d(#xrequires that the state or local authority act within a reasonable time. 47 U.S.C.  332(c)(7)(B)(ii) ("A State or local  d(#government or instrumentality thereof shall act on any request for authorization to place, construct, or modify  d(#\personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.")0 Failure to act within these time limits would cause the request to be deemed granted.  Y- ` 1SS7. Additionally, the requested rule would remove from local consideration certain  Utypes of restrictions on the siting and construction of transmission facilities. Petitioners  Uwould categorically preempt regulations based on the environmental or health effects of  Uradio frequency ("RF") emissions to the extent a broadcast facility has been determined by  Uthe Commission to comply with its regulations and policies concerning emissions;  Uinterference with other telecommunications signals and consumer electronics devices as  U.long as the broadcast antenna facility has been determined by the Commission to comply  Uwith its applicable regulations and/or policies concerning interference; and tower marking  UKand lighting requirements provided that the facility has been determined by the Commission  Uor the Federal Aviation Administration to comply with applicable tower lighting, painting and marking regulations or policies. ",N(N(ZZ"Ԍ Y- ` oSS8. Further, the rule would preempt all state and local land use, building, and  U[similar laws, rules or regulations that impair the ability of licensed broadcasters to place,  U>construct or modify their transmission facilities unless the promulgating authority can  Udemonstrate that the regulation is reasonable in relation to a clearly defined and expressly stated health or safety objective other than the categorical preemptions described above.  Yv- MSS9. To provide for expeditious review, the Petitioners' proposed rule requires that  Uany state or local government decision denying a request be in writing, supported by  YH- Usubstantial evidence, and delivered to all applicants within 5 days.tH xP - v !ԍThis portion of the proposed rule generally tracks the procedures by which a state or local authority may  d(#[deny a request to construct personal wireless services facilities as outlined in the 1996 Telecommunications Act.  d(#47 U.S.C.  332(c)(7)(B)(iii) ("Any decision by a state or local government or any instrumentality thereof to deny  d(#a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.")t Any broadcaster  Uadversely affected by any such action could, within 30 days of the decision, petition the  UCommission for a declaratory ruling on which the Commission, in turn, would have 30  Y - Udays in which to act.@ x xP,- v ԍWhile the 1996 Telecommunications Act contains procedures for the appeal of a State or local government  d(#jdecision in the context of the construction and placement of personal wireless service facilities, these procedures  d(#idiffer from the procedures proposed by the Petitioners. 47 U.S.C.  332(c)(7)(B)(v) ("Any person adversely affected  d(#by any final action or failure to act by a state or local government or any instrumentality thereof that is inconsistent  d(#with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of  d(#competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely  d(#affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.")  The rule would also authorize the Commission to administer dispute resolution.  Y -  Y -III. Discussion  Y- ` SS 10.In the Fifth Report and Order, we found that an accelerated rollout of digital  Utelevision was essential for four reasons. We found that absent a speedy rollout, other  Udigital television services might achieve levels of penetration that could preclude the  Usuccess of overtheair digital television, leaving viewers without a free, universally  Y4- ULavailable digital programming service.f 4  xPe -ԍFifth Report and Order, supra at  80.f Second, we determined that a rapid construction  Uperiod would promote DTV's competitive strength internationally, spurring the American  Ueconomy in terms of manufacturing, trade, technological development, international  Y- Ujinvestment, and job growth.F  xP$-ԍId. at  81.F Third, we stated that "an aggressive construction schedule  Uhelps to offset possible disincentives that any individual broadcaster may have to begin" ,N(N(ZZ"  Y- ULdigital transmissions quickly."F  xPy-ԍId. at  82.F Finally, we found that a rapid buildout would work to  Y- U.ensure that the recovery of broadcast spectrum occurs as quickly as possible.F X xP-ԍId. at  83.F This will  Ukenable the federal government to reallocate some of the recovered spectrum for public  Y-safety purposes, and to eventually auction the rest.3  xPT- NԍSee Notice of Proposed Rule Makin g in ET Docket No, 97157, FCC 97245, Reallocation of Television  xP -  Channels 6069, the 746806 MHz Band (July 9, 1997). See Also BBA, supra note 3, (codified at 47 U.S.C.   xP -  L337)  (providing for the allocation of 24 megahertz of returned spectrum to be allocated for public safety services and 36 megahertz of that spectrum to be auctioned for commercial use) 3  Y- ` SS 11.To achieve these purposes, we instituted an "aggressive but reasonable"  Yv- Uconstruction schedule, aimed at exposing as many homes to DTV as early as possible.ov xP-ԍ Fifth Report and Order, supra at  2, 7. o  Y_- UIn the Fifth Report and Order, we noted that circumstances beyond a broadcaster's control,  Usuch as difficulties in obtaining zoning and other approvals, may interfere with its ability  Y1- Uto meet construction schedule requirements.G1`  xPB-ԍId. at  77. G We are, however, also sensitive to the  Uimportant state and local roles in zoning and land use matters and their longstanding  Uinterest in the protection and welfare of their citizenry. Given the countervailing  ULimportance of accelerated construction of DTV transmission facilities, however, we seek  Uto define those circumstances in which it may be necessary to preempt state and local regulations in order to achieve the benefits of a rapid rollout of DTV. SS  Y- ` @SS 12.As a preliminary matter, we note that it is well settled that the Communications  UAct of 1934, as amended ("Communications Act"), comprehensively provides for  U.regulation of radio frequency interference and that the FCC has exclusive jurisdiction to  YK- Uyresolve such questions.K  xP- ?#X\  P6G;P#эSee e.g., 47 U.S.C.  152(a), 301, 303(c), (d), (e), and especially (f); Head v. New Mexico Board of  xP-  Examiners in Optometry, 374 U.S. 424, 430 n.6 (1963)(the FCC's "jurisdiction over technical matters" associated  xP|-  ywith the transmission of broadcast signals is clearly exclusive); 960 Radio, Inc., FCC 85578 (released November  xPD -  4, 1985)(preempts local zoning authority regulation of interference caused by an FM station); Mobilecom of New  xP !-York, Inc., 2 FCC Rcd 5519 (Com. Car. Bur. 1987) With regard to interference affecting home consumer equipment  Uin particular, Congress plainly stated in the 1982 amendments to the Communications Act  Uthat it intended federal regulation to completely occupy the field to the exclusion of local  Y- Uand state governments.X xPW%- #X\  P6G;P#э H.R. Report No. 765, 97th Cong. 2d Sess. 33 (1982), reprinted in 1982 U.S. Code Cong. & Ad. News   i2277 (amendment to Section 302(a) of Act)("The Conference substitute is further intended to clarify the reservation   iof exclusive jurisdiction to the Federal Communications Commission over matters involving RFI. Such matters shall"&,N(N( '"   =not be regulated by local or state law, nor shall radio transmitting be subject to local or state regulation as part of any effort to resolve an RFI complaint.") Thus, a rule preempting state and local zoning regulations based" ,N(N(ZZ"  U=on electromagnetic interference would simply codify the existing state of the law. With  Urespect to other aspects of the proposed rule preemption of state and local zoning  U/restrictions based on environmental or health effects of RF emissions, tower lighting,  Upainting and marking, and health, safety and traditional land use powers we have  Uauthority to preempt where state or local law, among other things, stands as an obstacle  Y- Uto the accomplishment and execution of the full objectives of Congressd  xP^ -ԍHines v. Davidowitz, 312 U.S. 52, 68 (1941).d or where we find  UMpreemption is "necessary to achieve [our] purposes" within the scope of our delegated  Y_-authority._ xP - ԍCity of New York v. FCC, 486 U.S. 57, 63 (1988). See generally Louisiana Public Service Commission  xP -v. FCC, 476 U.S. 355, 36869 (1986) and cases cited therein.  Y1- ` SS 13.Congress explicitly indicated its objective of a speedy recovery of spectrum in  Y - USection 336(c) of the 1996 Telecommunications Act, "Recovery of License."   xP- ԍ47 U.S.C.  336(c). See generally 47 U.S.C.  151 (purpose of the Act includes "to make available, so   far as possible...a rapid, efficient Nationwide and worldwide radio communication service with adequate   facilities"); 47 U.S.C.  157 ("It shall be the policy of the United States to encourage the provision of new technologies and services to the public.").  That  Usection requires that the Commission establish as a condition of granting a DTV license the  Ureturn of either that license or the original license held by the licensee "for reallocation or  Ureassignment (or both) pursuant to Commission regulation." As indicated above, the  U=Commission found that a speedy conversion would enhance the likelihood of success for  Uthe DTV rollout and allow for the rapid recovery of spectrum. The Commission  Udetermined that a lethargic conversion would, to the contrary, undermine the potential for  Ua successful conversion and thereby undermine the potential for such a recovery, as sought  Uby Congress. The Commission also determined that the prompt, broad availability of DTV  YK-to the American public was an important public interest goal.eK  xP-ԍFifth Report and Order, supra at  5.e  Y- ` SS 14.Delays in local zoning and land use decisions would hold up the construction  ULof an essential part of the DTV transmission system and make it impossible for a licensee  U0to satisfy the construction requirement to transmit "a DTV signal strong enough to  Y- U]encompass the community of license," by the required deadline.f  xP $-ԍFifth Report and Order, supra at  91.f This could leave  Ubroadcasters unable to "give a great number of viewers access to a DTV signal in a very  Y- ULshort period." xPk'-ԍId. at  76. See also id. at  8485 and 87. To the extent that state and local ordinances result in delays that make it",N(N(ZZ"  Uimpossible for broadcasters to meet our construction schedule and provide DTV service to  ULthe public, important Congressional and FCC objectives regarding prompt availability of this service to the public and prompt recovery of spectrum would be frustrated.  Y- M_SS#Xw P7[AXP#15. At the same time, we are sensitive to the rights of states and localities to  UKprotect the legitimate interests of their citizens and we do not seek to unnecessarily infringe  Yv- Uzthese rights. #xTGIhXI##Xw P7[AXP#The Commission recognizes its obligation to "reach a fair accommodation  Y_- U[between federal and nonfederal interests."_X_ xP- m#X\  P6G;P#эArecibo Radio Corporation, 101 FCC 2d 545, 550 (1985); see City of New York v. FCC, 486 U.S. 57,   64 (1988) (Commission exercise of preemption power must represent reasonable accommodation of conflicting policies.)_ Thus, it is incumbent upon the Commission  Unot to "unduly interfere with the legitimate affairs of local governments when they do not  Y1- U-frustrate federal objectives."X1 xP - 0#X\  P6G;P#эNotice of Proposed Rule Making, In the Matter of Preemption of Local Zoning Regulations of Receive xP-  Only Satellite Earth Stations, 100 FCC 2d 846, 853 (1985). See also Preemption of Local Zoning Regulations of Satellite Earth Stations, IB Docket No 9559, 11 FCC Rcd 5809 (1996). These include not only certain health and safety regulations,  Uwhich the Petitioners' proposed rule recognizes, but also the right of localities to maintain  Y - Utheir aesthetic qualities.   xP- #X\  P6G;P#эSee Preemption of Local Zoning Regulations of ReceiveOnly Satellite Earth Stations, 100 FCC 2d 846  xP-  at  21; Amendment of Part 73 of the Commission's Rules to More Effectively Resolve Broadcast Blanketing   yInterference, 11 FCC Rcd 4750, 4754 (1996) (localities best situated to resolve local land use and related aesthetic questions). Indeed, historically we have sought to avoid becoming  Uunnecessarily involved in local zoning disputes regarding tower placement. Nevertheless,  U=we have adopted rules preempting local zoning ordinances where the record established  Uthat such ordinances were inhibiting the implementation of Congressional or FCC  Uobjectives, including with regard to locating satellite "dish" antennas and amateur radio  Y-towers.X  xP1- >ԍE.g., Preemption of Local Zoning or Other Regulation of ReceiveOnly Satellite Earth Stations, CC Docket   No. 8587, 59 RR 2d 1073 (Released Feb. 5, 1986); Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, PRB 1 50 Fed. Reg. 38813 (Sept. 25, 1985).   Yb- ` SS16.The P#Xw P7[AXP#etitioners' proposed rule would cover siting of all broadcast transmission  Uyfacilities construction. That is, petitioners have not limited their preemption rule to DTV Urelated construction, including the involuntary relocation of FM antennas now collocated  Uon television towers. It is less clear that preemption will be needed where broadcasters do  Unot face exigencies such as DTV construction deadlines. There are now over 12,000 radio  Uand 1,500 television station licenses outstanding, totals which suggest that generally  Ucompliance with state and federal laws relating to broadcast station construction and  U[operation has been possible and that state regulation has not been an insuperable obstacle  Uyto the exercise of the Commission's "powers to promote and realize the vast potentialities",N(N(ZZ"  Y- U=of radio." xPy-#X\  P6G;P#эNational Broadcasting Company v. United States, 319 U.S. 190, 217 (1943). In these circumstances, we seek information on whether any preemption rule  Ushould be limited to DTV construction and to radio station transmission facility relocations  Y- Uresulting from such construction.YX xP-ԍBut see paragraph 21, infra.Y We also seek additional information on Petitioners'  Uassertion that local zoning regulation "stands as an obstacle to the implementation of the  Y-DTV conversion and to the institution and improvement of broadcast service generally."E xP= -ԍPetition at page 22.E  Yv-IV. Request for Comments  YH- ` #SS17.In order to determine whether preemption is necessary and desirable and the  ULscope of any preemption rule, we seek comment on a number of issues. This will enable  Uthe Commission to determine whether and how extensively it should exercise its authority to preempt state and local zoning and land use laws and ordinances.  Y - M{SS18. As an initial matter, we generally invite comment on the Petitioners' proposals  Ukfor the preemption of state and local laws, regulations and restrictions on the siting of  U^broadcast transmission facilities. We seek comment on the Petitioners' proposed  Upreemption rule. Alternatively, we request comment on whether any rule we adopt should  U<focus on actions state and local governments would be preempted from taking or what state  Yb-or local authority would be preempted by failure to act within a specified time period._bx xP-ԍSee, e.g., 47 C.F.R.  25.104. _  Y4- M|SS19. We seek a detailed record of the nature and scope of broadcast tower siting  Uissues, including delays and related matters encountered by broadcasters, tower owners  Uand local government officials. Although Petitioners provide anecdotal evidence regarding  ULdifficulties encountered by several broadcasters in attempting to meet local ordinances in  U<connection with tower siting and construction, we have no basis on which to determine the  Uextent to which such difficulties are representative of radio and television broadcast  Uindustry tower siting experiences generally. So that we might have a factual basis upon  Uwhich to determine the nature and extent of the problem, we ask commenters to provide  Uyus with information on their experiences, both positive and negative, with state and local  Uzoning and land use approvals, and with the application of other laws and ordinances in  U<connection with their efforts to site, construct and operate radio and television transmission  Utowers. Particularly relevant would be comments on the duration of local permitting  Uprocesses tied to such laws and ordinances. We are also particularly interested in receiving" ,N(N(ZZ<"  U|information about experiences related to obstacles and time constraints or delays  Y-encountered by broadcasters and tower owners in the top 30 markets.i  xPb-  ԍ The top thirty television markets, as ranked by Nielsen Media Research as of April 3, 1997 are: New York,   Los Angeles, Chicago, Philadelphia, San Francisco, Boston, Washington, D.C., DallasFort Worth, Detroit   hAtlanta, Houston, SeattleTacoma, Cleveland, MinneapolisSt. Paul, TampaSt.Petersburg, Miami, Phoenix, Denver,   Pittsburgh, SacramentoStockton, St. Louis, OrlandoDaytona Beach, Baltimore, Portland, OR, Indianapolis, San Diego, HartfordNew Haven, Charlotte, RaleighDurham, and Cincinnati.i SS  Y- M^SS20. We are especially interested in the extent to which commenters believe any  Usuch difficulties are representative of difficulties that are now being faced or will be faced  Uin the context of DTV buildout. Also, we request comments on whether existing laws,  U<ordinances and procedures are likely to impede adherence to our accelerated DTV buildout schedule.  Y1- M?SS21. We seek comment on the scope of the preemption proposed by Petitioners, on  Uthe range of facilities to which the rule should apply and on the state and local laws,  U.regulations, and other restrictions which federal law might preempt. Should we preempt  U@local regulation for all broadcast facilities? Should the preemption be limited to  Uconstruction of DTV transmission facilities and the relocation of those FM radio facilities  U-displaced by DTV? Should the preemption be limited to the top markets in which the DTV rollout schedule is more aggressive?  Yy- ` SS22.Should the Commission preempt state and local restrictions regarding exposure  Uto RF emissions from broadcast transmission facilities? Are there other circumstances in  Uwhich it is appropriate for the Commission to preempt state and local regulation of the  Usiting or construction of transmission facilities? Should federal regulation preempt local regulation intended for aesthetic purposes? SS  Y- M!SS23. We seek comment on the procedural framework proposed by Petitioners. Are  Uthe time frames proposed by Petitioners reasonable? Specifically, should we preempt state  ULand local government authority where they fail to act within certain time periods? If so,  Uzwhat should be those time periods? Is 45 days appropriate, or would 90 days be more  Y- Urealistic for broadcast tower applications? Can the DTV construction schedule in the Fifth  Y|- U.Report and Order be reconciled with the procedures of states and localities? In the event  Uthat we preempt as to procedural aspects of zoning and land use regulation, what  Uconstraints, if any, are there on the ability of state and local governments to meet the  Uexpedited procedures sought by Petitioners? We specifically ask states and localities to  Ucomment on their current procedures, their need to use these procedures, the possibility  Uof using expedited procedures to assure our DTV construction schedule is met, and the  Unature of such expedited procedures. Is there an appropriate role for the Commission in  Ukresolving disputes between localities and licensees with respect to tower siting issues?  UWhat is the nature of that role arbitrator, mediator or simply the provider of a forum to" x ,N(N(ZZ!"  Uywhich parties can turn for suggestions on resolving local disputes? Is outside arbitration, administered by the Commission, an appropriate forum for alternative dispute resolution?  Y- ` SS24.We note that we recently received an Advisory Recommendation on the  UlPetitioner's proposal from the Commission's Local and State Government Advisory  Y- UkCommittee.! xP-  ԍ Local and State Government Advisory Committee Recommendation No. 3, NAB Petition for Further Notice of Proposed Rule Making, MM Docket 87-286, August 1, 1997. This recommendation will be incorporated into the public record of this  Uproceeding, and we will consider the issues raised by the Committee in this and any future filing.  Y -V. Administrative Matters   Y - MSS25. Comments and Reply Comments. Pursuant to applicable procedures set forth  Uin Sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R.  1.415 and 1.419,  U[interested parties may file comments on or before October 30, 1997, and reply comments  Uon or before December 1, 1997. To file formally in this proceeding, you must file an  Uoriginal plus four copies of all comments, reply comments, and supporting comments. If  U{you want each Commissioner to receive a copy of your comments, you must file an  Uoriginal plus nine copies. You should send comments and reply comments to Office of the  USecretary, Federal Communications Commission, Washington, D.C. 20554. Comments and  Ureply comments will be available for public inspection during regular business hours in the FCC Reference Center (Room 239), 1919 M Street, N.W., Washington, D.C. 20554.  Y- M0SS26. Initial Paperwork Reduction Act of 1995 Analysis. We have not proposed in  Y-this proceeding any proposed or modified information collection requirement.  Y- MSS27. Ex Parte Rules. This is a nonrestricted notice and comment rule making  Y- UMproceeding. Ex parte presentations are permitted, except during the Sunshine Agenda  Y|- Uperiod, provided they are disclosed as provided in the Commission Rules. See generally 47 C.F.R. Sections 1.1202, 1.1203, and 1.1206(a).  Y7- MSS28. Initial Regulatory Flexibility Analysis. With respect to this Notice, an Initial  URegulatory Flexibility Analysis ("IRFA") is contained in Appendix A. As required by  USection 603 of the Regulatory Flexibility Act, the Commission has prepared an IRFA of  Y- Uthe expected impact on small entities of the proposals contained in this Notice. Written  U!public comments are requested on the IRFA. In order to fulfill the mandate of the  UContract with America Advancement Act of 1996 regarding the Final Regulatory  UjFlexibility Analysis, we ask a number of questions in our IRFA regarding the prevalence  Y"- Uof small businesses in the industries covered by this Notice. Comments on the IRFA must  Y#- Ube filed in accordance with the same filing deadlines as comments on the Notice, but they"# !,N(N(ZZ$"  Umust have a distinct heading designating them as responses to the IRFA. The Secretary  Y- U=shall send a copy of this Notice, including the IRFA, to the Chief Counsel for Advocacy  Uof the Small Business Administration in accordance with Section 603(a) of the Regulatory  Y- UFlexibility Act, Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601 et seq. (1981), as amended.  Yv- MSS29. Authority. This Notice is issued pursuant to authority contained in Sections  Uj4(i), 303, and 336 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303, 307 and 336.  Y - MlSS30. Additional Information. For additional information on this proceeding, please  Ucontact Keith Larson, Assistant Bureau Chief for Engineering or Susanna Zwerling, Policy and Rules Division, Mass Media Bureau (202) 4182140. Q8FEDERAL COMMUNICATIONS COMMISSION h! h! h! h! William F. Caton  NActing Secretary"4 !,N(N(ZZ"  X-h!3 APPENDIX A aV  X- Initial Regulatory Flexibility Analysis aV aV[SSAs required by Section 603 of the Regulatory Flexibility Act ("RFA"), 5 U.S.C.  603, the Commission is incorporating an Initial Regulatory Flexibility Analysis (IRFA) of the expected impact on small entities of the policies and proposals in this  Y_-Notice of Proposed Rule Making ("Notice"). Written public comments concerning the  YH-effect of the proposals in the Notice, including the IRFA, on small businesses are requested. Comments must be identified as responses to the IRFA and must be filed by the deadlines for the submission of comments in this proceeding. The Secretary shall  Y -send a copy of this Notice, including the IRA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the  Y -Regulatory Flexibility Act."  xPN-#C\  P6QP#эPub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601 et seq. (1981), as amended.  Y - Reasons Why Agency Action is Being Considered: In its Fifth Report and Order in its digital television proceeding (MM Docket No. 87268) the Commission adopted an accelerated rollout schedule for digital television stations. That schedule requires the top four network affiliates in the top ten television markets to construct their digital television facility and begin emitting signals by May 1, 1999. Affiliates of these four networks in markets 11 30 must be on the air by November 1, 1999. All other commercial stations will have to construct their DTV facilities by May 1, 2002, and noncommercial stations by May 1, 2003. The Commission found this accelerated schedule necessary to promote the success of DTV and allow for spectrum recovery, a goal shared by Congress. In a rule making petition filed by the National Association of Broadcasters and the Association of Maximum Service Television the Petitioners claim that state and local zoning and land use laws, ordinances, and procedures may have a delaying effect on the siting, placement and construction of new television towers that will be needed for DTV. Additionally, they contend, the antennas of many FM radio stations will need to be displaced from existing towers to enable them to support new DTV antenna arrays and these FM stations will have to build new towers to enable them to continue to serve the public. Accordingly, they ask the Commission to adopt a rule preempting state and local laws, ordinances and procedures that could work to delay the inauguration of DTV service. The Commission believes the prompt deployment of DTV is essential to several goals, and that compliance with such local requirements may, at least in some cases, both make compliance with both these  Y -procedures and the rollout schedule impossible. Additionally, it believes that some of these state and local regulations may stand as obstacles to the accomplishment of the rapid transition to DTV service and the spectrum recovery that it will permit. This recovery is also an important congressional purpose as evidenced by its 1996 adoption of 47 U.S.C.  336."i$ X",N(N(ZZ%"Ԍ Y-ԙ Need For and Objectives of the Proposed Rule Changes: Petitioners have demonstrated that at least some state and local zoning and land use laws, ordinances and procedures may, unless preempted by the Commission, prevent television broadcasters from meeting the construction schedule for DTV stations established by the Commission, retarding the recovery of frequency spectrum by the government for reallotment and delaying digital service to the public. Additionally, in some cases they may result in discontinuation of FM radio service to the public should displaced FM antennas be unable to relocate to new antenna towers.  Y2- Legal Basis: Authority for the actions proposed in this Notice may be found in Sections 4(i), 303(r), and 336 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r), and 336.  Y - Recording, Recordkeeping, and Other Compliance Requirements: The Commission is not proposing any new or modified recordkeeping or information collection requirements in this proceeding.  Y|- Federal Rules that Overlap, Duplicate, or Conflict with the Proposed Rules: The initiatives and proposed rules raised in this proceeding do not overlap, duplicate or conflict with any other rules.  X!- Description and Estimate of the Number of Small Entities to Which the Proposed  Y -Rules Will Apply: Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions. 5 U.S.C.  601(6). The RFA, 5 U.S.C.  601(3), generally defines the term "small business" as having the same meaning as the term "small business concern" under the Small Business Act, 15 U.S.C.  632. A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional  Y-criteria established by the Small Business Administration ("SBA"). Pursuant to 5 U.S.C.  601(3), the statutory definition of a small business applies "unless an agency after consultation with the Office of Advocacy of the SBA and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal  Y-Register."# xP - NԍWhile we tentatively believe that the SBA's definition of "small business" greatly overstates the number   Lof radio and television broadcast stations that are small businesses and is not suitable for purposes of determining  xP"-  the impact of the proposals on small television and radio stations, for purposes of this Notice, we utilize the SBA's   definition in determining the number of small businesses to which the proposed rules would apply, but we reserve   the right to adopt a more suitable definition of "small business" as applied to radio and television broadcast stations  xPo$-  or other entities subject to the proposed rules in this Notice and to consider further the issue of the number of small  xP7%-  entities that are radio and television broadcasters or other small media entities in the future. See Report and Order  xP%-  in MM Docket No. 93-48 (Children's Television Programming), 11 FCC Rcd 10660, 1073738 (1996), citing 5 U.S.C.  601(3)." #,N(N(ZZ"ԌSSThe proposed rules and policies will apply to television broadcasting licensees, radio broadcasting licensees and potential licensees of either service. The Small Business Administration defines a television broadcasting station that has no more than  Y-$10.5 million in annual receipts as a small business.t$ xP4-ԍ13 C.F.R.  121.201, Standard Industrial Code (SIC) 4833 (1996).t Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by  Y-television to the public, except cable and other pay television services.R%X xP- ԍEconomics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS  xP^ -OF TRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92S1, Appendix A9 (1995).R Included in  Yv-this industry are commercial, religious, educational, and other television stations.&xv xP -  {ԍ Id. See Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual (1987), at 283, which describes "Television Broadcasting Stations (SIC Code 4833) as:  3XEstablishments primarily engaged in broadcasting visual programs by television to the public,  except cable and other pay television services. Included in this industry are commercial, religious,  educational and other television stations. Also included here are establishments primarily engaged in television broadcasting and which produce taped television program materials.  Also included are establishments primarily engaged in television broadcasting and which  YH-produce taped television program materials.Y'H  xP- ԍ Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS  xP-OF TRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92S1, Appendix A9 (1995).Y Separate establishments primarily engaged in producing taped television program materials are classified under another  Y -SIC number.( H  xP-  ԍ Id. SIC 7812 (Motion Picture and Video Tape Production); SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services (producers of live radio and television programs). There were 1,509 television stations operating in the nation in 1992.)  xPk- /ԍ FCC News Release No. 31327, Jan. 13, 1993; Economics and Statistics Administration, Bureau of Census,  zP3-U.S. Department of Commerce, supra note 78, Appendix A9. That number has remained fairly constant as indicated by the approximately 1,558  Y -operating television broadcasting stations in the nation as of May 31, 1997.p*  xP-ԍ FCC News Release "Broadcast Station Totals as of May 31, 1997.p For  Y -1992+  zP!- ԍCensus for Communications' establishments are performed every five years ending with a "2" or "7". See  xP!-Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, #c P7P#supra#c P7P# note 78, III. the number of television stations that produced less than $10.0 million in  Y -revenue was 1,155 establishments.,X  xPS$- ԍThe amount of $10 million was used to estimate the number of small business establishments because the   relevant Census categories stopped at $9,999,999 and began at $10,000,000. No category for $10.5 million existed. Thus, the number is as accurate as it is possible to calculate with the available information. " ,,N(N(ZZ"ԌSSAdditionally, the Small Business Administration defines a radio broadcasting  Y-station that has no more than $5 million in annual receipts as a small business.R- xPb-ԍ13 C.F.R.  121.201, SIC 4832.R A radio broadcasting station is an establishment primarily engaged in broadcasting aural  Y-programs by radio to the public..X xP- ԍEconomics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, supra note 78, Appendix A9. Included in this industry are commercial religious,  Y-educational, and other radio stations.A/ xP -ԍ Id.A Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly  Yv-included.A0v@ xPg -ԍ Id.A However, radio stations which are separate establishments and are primarily engaged in producing radio program material are classified under another SIC  YH-number.A1H xP-ԍ Id.A The 1992 Census indicates that 96 percent (5,861 of 6,127) radio station  Y1-establishments produced less than $5 million in revenue in 1992.21`  xPB- >ԍThe Census Bureau counts radio stations located at the same facility as one establishment. Therefore, each colocated AM/FM combination counts as one establishment. Official Commission  Y -records indicate that 11,334 individual radio stations were operating in 1992.\3  xP-ԍ FCC News Release No. 31327, Jan. 13, 1993.\ As of May 31, 1997, official Commission records indicate that 12,156 radio stations were  Y -operating, of which 7,342 were FM stations.p4 H  xP-ԍFCC News Release "Broadcast Station Totals as of May 31, 1997."p  Y - SSThus, the proposed rules will affect many of the approximately 1,558 television  Y -stations; approximately 1,200 of those stations are considered small businesses.5  xP0- ]ԍWe use the 77 percent figure of TV stations operating at less than $10 million for 1992 and apply it to the 1997 total of 1558 TV stations to arrive at 1,200 stations categorized as small businesses. Additionally, the proposed rules will affect some of the 12,156 radio stations,  Yy-approximately 11,670 of which are small businesses.6y0 xPZ"- {ԍWe use the 96% figure of radio station establishments with less than $5 million revenue from the Census data and apply it to the 12,156 individual station count to arrive at 11,670 individual stations as small businesses.  These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from nontelevision or nonradio affiliated companies. "46,N(N(ZZV"ԌSSIn addition to owners of operating radio and television stations, any entity who seeks or desires to obtain a television or radio broadcast license may be affected by the proposals contained in this item. The number of entities that may seek to obtain a television or radio broadcast license is unknown. We invite comment as to such number.  Xv- SSAny Significant Alternatives Minimizing the Impact on Small Entities and  Y_-Consistent with the Stated Objectives : This Notice solicits comment on a variety of alternatives discussed herein. Any significant alternatives presented in the comments will be considered. The Commission believes that the proposed rules and policies may be necessary to promote the speedy deployment of digital television service and the prompt recovery of broadcast frequency spectrum for reallotment. We seek comment on this belief.  Y - SSReport to Small Business Administration: The Commission shall send a copy of this Initial Regulatory Flexibility Analysis along with this Notice to the Small Business Administration pursuant to the RFA 5 U.S.C.  603(a). A copy of this IRFA  Y{-will also be published in the Federal Register.  ?d<#x6Nh ;hXH#"d6,N(N(ZZ"  X-4 #Xw P7[AXP# APPENDIX B #x6Nh ;hXH# aV  X- #Xw P7[AXP# Petitioners' Proposed Preemption Rule  ?<aV #x6Nh ;hXH# aV[  Y*-SS#Xj\  P6G;[AXP#In order to facilitate the rapid deployment of Digital Television ("DTV") services, as authorized by the Commission in MM Docket No. 87268, and in recognition of the need to facilitate the siting and construction of broadcast transmission facilities generally, the following procedures and rules shall apply to the siting of new broadcast transmission facilities or the alteration or relocation of existing broadcast transmission facilities by television and radio stations whose operations have been authorized by the Commission.  Yr - M (a) #Xj9 xOG; X#XSSSiting Procedures# Xj\  P6G;[AXP#. A State or local government or instrumentality thereof shall act  Mon any request for authorization to place, construct, or modify broadcast  Mtransmission facilities within a reasonable period of time after a written request is  Mfiled with such government or instrumentality for any required permit or other  M0authorization. For purposes of this subsection, a "reasonable period of time" shall  Y-mean:Ʊ!S  Y- ` SS(1)within twentyone (21) days, with respect to requests to (i) modify existing  ` broadcast transmission facilities where no change in location or overall         height  ` #is proposed, and (ii) strengthen or replace an existing broadcast transmission facility;Ʊ!  Yy- SS  Yb- ` %SS(2)within thirty (30) days, with respect to requests to (i) relocate existing  ` broadcast transmission facilities from a currently approved location to another  ` Alocation within 300 feet; (ii) consolidate two or more broadcast transmission  ` facilities on a common tower other structure, whether the tower or other  ` Bstructure is preexisting or new; or (iii) increase the height of an existing tower; Ʊ! SS  Y-SS(3)in all other cases, within fortyfive (45) days.  MXSSThe failure of a state or local government or instrumentality thereof to act on any  Mrequest within a reasonable period of time will result in the request being eedeemed granted. Ʊ!S  Y7"-(b)SS#Xj9 xOG; X#Preemption.# Xj\  P6G;[AXP#  Y $- ` XSS(1)wNo state or local government or instrumentality thereof may deny a request to place, construct or modify a broadcast antenna facility on the basis of:Ʊ! "%6,N(N(ZZ'"Ԍ Y- #RpSA SS(i)FA A the environmental or health effects of radio frequency emissions to the  #Dextent that such facility has been determined by the Commission to E E E E E E  #pcomply with the Commission's regulations and/or policies concerning ]!]!]!]!]!]!such emissions;Ʊ!A  Y-  #'XSSw(ii)wA A interference effects on existing or potential telecommunications  #providers, end users, broadcasters or third parties, to the extent that the  #broadcast antenna facility has been determined by the Commission to   #'comply with applicable Commission regulations and/or policies concerning interference;Ʊ!A  Y - #SS(iii)FA A lighting, painting, and marking requirements, to the extent that the   #facility has been determined by the Federal Aviation Administration  #("FAA") or the Commission to comply with applicable FAA and   #Commission regulations and/or policies regarding tower lighting, painting and marking;Ʊ!A  Yy- ` SS(2)Any state or local landuse, building, or similar law, rule or regulation thatH!H!H!H! ` ^impairs the ability of federally authorized radio or television operators to place,  ` Aconstruct or modify broadcast transmission facilities, is preempted unless the  ` 2promulgating authority can demonstrate that such regulation is reasonable in relation to:Ʊ!  Y-SS(i)FA A a clearly defined and expressly stated health or safety objective other    Ʊ!A XSSwwA A than one related to those set forth in Section (1)(i)(iii) above; andƱ!A SS Y- #XSSw(ii)wA A the federal interests in (i) allowing federally authorized broadcast  #operators to construct broadcast transmission facilities in order to render  #their service to the public; and (ii) fair and effective competition among competing electronic media.Ʊ!A  Y7- M(c)XSS#Xj9 xOG; X#Written decision# Xj\  P6G;[AXP#. Any decision by a State or local government or instrumentality  M{thereof to deny a request to place, construct, or modify a broadcast antenna facility  MOshall be in writing and supported by substantial evidence contained in a written  Mrecord. Such written decisions shall be delivered to all applicants within five (5) days.Ʊ!S  Y!- M(d)XSS Alternative Dispute Resolution#Xj\  P6G;[AXP#.  In the event that an applicant is denied approval  Mto place, construct, or modify a broadcast antenna facility, the applicant may elect  Y#- ` 1to have its request submitted to an alternate dispute resolution process which shall  M0be administered by the Commission. An Applicant whose request has been denied  M?may elect arbitration by filing a written notice of election, including a copy of the  Mwritten decision of the state or local government or instrumentality thereof, with the  MCommission within ten (10) days of receipt of the decision of the state or local"+'6,N(N(ZZP("  Mgovernment or instrumentality thereof. The Commission shall select an arbitrator  Mto hear and resolve the dispute within five (5) days of receipt of the notice. The  MCommission shall conduct and complete the arbitration within fifteen (15) days of  Mreceipt of the applicants' written request for arbitration. If it is determined that the  M!decision of the state or local government or instrumentality thereof is unsupported  Y- ` by the evidence in the record and would, if allowed to stand, frustrate the federal  Mlinterests set forth above in paragraph (b)(2)(ii), the Commission shall issue an order  Mvacating the decision of the state or local government or instrumentality thereof and  Mlgranting the applicant's request to place, construct, or modify its broadcast antenna facility. Ʊ!S  Y - M0(e)XSS#Xj9 xOG; X#Declaratory Relief# Xj\  P6G;[AXP#. Any radio or television operator adversely affected by any  Mfinal action or failure to act by a State or local government or any instrumentality  Mthereof that is inconsistent with this rule may, within 30 days after such action or  M|failure to act, petition the Commission for a declaratory ruling requesting relief. The Commission shall act on such petitions within thirty (30) daysƱ!S  Y}-(f)SS#Xj9 xOG; X## Xj9 xOG; X#Definitions# Xj\  P6G;[AXP#. For purpose of this section:  YS- ` 3SS(i)"Broadcast transmission facilities" shall mean towers, broadcast antennas,  ` SSassociated buildings, and all equipment cables and hardware used for the  ` SSpurpose of or in connection with federally authorized radio or television SSbroadcast transmissions.  Y- `  SS(ii)"Broadcast operator" shall mean a person, firm, corporation or other form of  ` business organization which has been issued a construction permit, license,  ` experimental authorization, special temporary authorization, or other authority  Y-from the Federal Communications Commission.