103. Moreover, we believe that Section 706 of the 1996 Act, which addresses advanced telecommunications incentives, also supports our extension of the OTARD principles. Section 706 directs the Commission to "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans ... by utilizing, in a manner consistent with the public interest, convenience, and necessity measures that promote competition in the local telecommunications market, and other regulating methods that remove barriers to infrastructure

,264 investment. We believe that the extension of OTARD protections to antennas used for the transmission or reception of fixed wireless signals will foster the deployment of advanced telecommunications services.

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104.

Our action also is necessary to further the consumer protection purposes of Sections 201(b), 202(a), and 205(a) of the Act. These statutory provisions are intended to ensure that the rates, terms, and conditions for the provision of common carrier service are just, fair, and reasonable, and that there is no unjust or unreasonable discrimination in the provision of such service. Further, Section 201(b) grants us express authority to "prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of th[e] Act. "266 To the extent devices used for multichannel video programming services are protected from unreasonable restrictions under the OTARD rules and the same devices when used only for fixed wireless services are not, consumers who want only fixed wireless service may inexorably be forced to pay unjust and unreasonable charges in connection with unwanted video programming. Thus, if we failed to extend the OTARD principles, we would effectively undermine the policies against unreasonable charges and discriminatory policies that are codified in Sections 201(b), 202(a), and 205(a).

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9268

105. Because our extension of the OTARD rules is necessary to realize these statutory goals, Sections 303(r) and 4(i) provide the basis for our exercise of ancillary jurisdiction. Section 303 prescribes the general powers of the Commission with respect to radio transmissions. Specifically, it authorizes us to “[m]ake such rules ... as may be necessary to carry out the provisions of this the Act. Section 4(i) provides that “[t]he Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions. Federal courts have consistently recognized that these provisions give the Commission

„269

265

See 47 U.S.C. § 201(b) ("all charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is hereby declared to be unlawful. ..."); 47 U.S.C. § 202(a) (“[i]t shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communications service. ..."); 47 U.S.C. § 205(a) (“the Commission is authorized and empowered to determine and prescribe what will be the just and reasonable charge or charges(,) ... and what classification, regulation, or practice is or will be just, fair, and reasonable. ...").

267

47 U.S.C. § 303; see also 47 U.S.C. $ 301 (“It is the purpose of this Act, among other things, to maintain the control of the United States over all the channels of radio transmission[J"').

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broad authority to take actions that are not specifically encompassed within any statutory provision but that are reasonably necessary to advance the purposes of the Act.

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106. Indeed, when Congress enacted Section 207, it recognized that Section 303 is a source of authority to promulgate regulations like the ones that we are adopting today. Section 207 directs the Commission to promulgate regulations prohibiting restrictions affecting devices used to receive the specified video programming services “pursuant to Section 303 of the Communications Act."271 This statutory language reflects Congress' recognition that, pursuant to Section 303, the Commission has always possessed authority to promulgate rules addressing OTARDs. Section 207 required us to promulgate rules within 180 days after enactment, effectively removing our discretion on both the timing and the determination of the need for such regulation. Although Section 207 directed us to take action in the context of devices designed to receive the named services, nothing in Section 207 precludes us from exercising our power under Section 303 and other provisions to protect the placement of similar antennas that receive or transmit other signals. Indeed, to the extent our action today applies to state and local governments, we previously imposed similar limits on state and local regulation of the placement of antennas both before and subsequent to the 1996 Act.272 We therefore conclude that the scope of the Section 207 directive to exercise our authority under Section 303 does not limit our independent exercise of the same authority under Section 303 and other provisions in a broader context and, in fact, affirmatively supports our use of Section 303 to extend the OTARD rules to fixed wireless devices.

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107. As applied to restrictions imposed by state and local governments, our extension of the OTARD rules also falls well within the bounds of established preemption principles. The Commission may preempt state law when, among other reasons, it “stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Moreover, “[p]re-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.°274 In addition, to the extent our regulation affects both interstate and intrastate services, preemption may be upheld "where it [is] not possible to separate the interstate and the intrastate components” of the regulation. As discussed above, state or local regulations that unreasonably restrict a customer's ability to place antennas used for the transmission or reception of fixed wireless signals impede the full achievement of important federal objectives, including the promotion of telecommunications competition and customer choice and the ubiquitous deployment of advanced telecommunications capability. Moreover, it is infeasible to use different antennas for

275

270

See note 261 supra (citing federal court cases upholding Commission's exercise of ancillary jurisdiction).

272

See Preemption of Local Zoning or Other Regulation of Receive-Only Satellite Earth Stations, 59 Rad. Reg. 2d (P&F) 1073 (1986); Earth Satellite Communications, Inc., 95 FCC 2d 1223 (1983) (preempting “state and local regulation of SMATV systems ... ha[s] the effect of interfering with, delaying, or terminating interstate and federally controlled communications services”), aff'd sub nom. New York State Commission on Cable Television v. FCC, 749 F. 2d 804 (D.C. Cir. 1984); Preemption of Local Zoning Regulation of Satellite Earth Stations, Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 5809 (1996).

273

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368-69 (1986) (Louisiana PSC) (citing Hines v. Davidovitz, 312 U.S. 52 (1941)).

274

Louisiana PSC, 476 U.S. at 369 (citing Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141 (1982) and Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984)).

275

Louisiana PSC, 476 U.S. at 376 n.4.

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interstate and foreign communications than for intrastate communications. Because fixed wireless antennas are used in interstate and foreign communications and their use in such communications is inseverable from their intrastate use, regulation of such antennas that is reasonably necessary to advance the purposes of the Act falls within the Commission's authority. Our action is therefore fully consistent with the preemption principles set forth in Louisiana PSC.

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108. Several local government organizations argue that an extension of the Commission's OTARD rules to restrict state and local government regulation of customer-end antennas used for transmitting or receiving telecommunications signals would violate Section 332(c)(7) of the Act.? Specifically, they argue that these antennas are “personal wireless service facilities” within the meaning of Section 332(c)(7), and that Section 332(c)(7) forbids the Commission from limiting state and local government regulation of such antennas except on the basis of RF emissions safety. In contrast, WCA argues that Section 332(c)(7) only applies to hub site antennas, and not to customer-end antennas.

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109. We believe that, in the context of Section 332(c)(7), the term “personal wireless service facilities” is best read not to include customer-end antennas. The Section defines “personal wireless service facilities” as facilities “for the provision of personal wireless services." Although the term taken by itself could be read to include customer-end facilities, a narrower reading which limits the term to a facility that “provides” the service, i.e., the carrier hub site, is not only reasonable, but also, as discussed below, better reflects the statutory provisions and goals of the 1996 Act in general and those of Section 332(c)(7) in particular. Thus, we find that Section 332(c)(7) does not prevent the Commission from restricting state and local government regulation of these antennas. We note, though, that nothing in this decision affects the well-established rights of state and local governments under Section 332(c)(7) to regulate the placement, construction, and modification of carrier hub sites.

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110. Read in context with other provisions of the 1996 Act, Section 332(c)(7) is best construed to apply only to hub sites. In particular, reading Section 332(c)(7) so as not to reach customerend antennas is more consistent with the simultaneous enactment of Section 207. The amendment of Section 332(c)(7) to preserve local zoning authority over personal wireless service facilities was enacted at the same time that Congress circumscribed local zoning authority over customer-end antennas used for

276

See, e.g., National Ass 'n of Regulatory Util. Comm’rs v. FCC, 746 F.2d 1492, 1498 (D.C. Cir. 1984) (stating that "purely intrastate facilities and services used to complete even a single interstate call may become subject to FCC regulation to the extent of their interstate use"); cf. Louisiana PSC, 476 U.S. at 376 n.4 (1986) (acknowledging that where it is not possible to separate the interstate and the intrastate components of the asserted FCC regulation,” FCC preemption is sustainable). The Communications Act defines “interstate communication" as any communication that originates in one state and terminates in another. 47 U.S.C. § 153(e).

277

City and County of San Francisco Comments at 16; National Association of Counties, the National Association of Telecommunications Officers and Advisors, and Montgomery County, Maryland Joint Comments at 20; Reply Comments of Concerned Communities and Organizations at 20. LSGAC references the argument regarding Section 332(c)(7) in its Recommendation No. 19, issued November 1, 1999. Section 332(c)(7) states that “[e]xcept as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 C.F.R. $ 332(c)(7). Section 332(c)(7) expressly permits the Commission to regulate State or local government decisions of the siting of personal wireless service facilities on the basis of RF emissions safety.

a

279

See, e.g., Communications Company of Charlottesville v. Board of Supervisors of Albemarle County, 211 F.3d 79, 86 (4" Cir. 2000).

video services. Given that precisely the same customer-end antennas may be used for telecommunications services as are used for video services, it is unlikely that Congress would preserve local zoning authority over the one at the same time it limited local zoning authority over the other.

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111. In addition, reading Section 332(c)(7) so as not to reach customer-end antennas is more consistent with Congress' use of the term "customer premises equipment" throughout the 1996 Act. In the 1996 Act, Congress defined “customer premises equipment” (CPE) as “equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications. Congress thus did not include such equipment within the category of facilities used by carriers to provide telecommunications services. As a consequence, when Congress sought, in the 1996 Act, to cover CPE along with telecommunications equipment, it specified both CPE and telecommunications equipment. Given Congress' express recognition in the 1996 Act of the Commission's longstanding deregulation of CPE and thus its fundamentally different character, we find it particularly likely that Congress would have specifically referenced this equipment in Section 332(c)(7) if it had intended for this section to apply to that equipment.

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282

112. Moreover, nothing in the legislative history indicates that Congress' preservation of local zoning authority was intended to extend to customer-end antennas. To the extent that the Conference Report gives examples of personal wireless service facilities, it references towers: “conferees do not intend that if a state or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s ‘50-foot tower' in a residential district. »283

a

113. A narrower interpretation of “personal wireless service facilities” also best promotes the goals of the 1996 Act and Section 332(c)(7). One of the primary goals of the 1996 Act was to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and to encourage the rapid deployment of new telecommunications technologies. In particular, among other things, Congress sought to open the traditionally monopolistic local exchange and exchange access telecommunications markets to competitive entry. Section 332(c)(7) promotes this goal by imposing certain limitations on state and

»284

285

281

See, e.g., 47 U.S.C. § 255 (“A manufacturer of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable."); 47 U.S.C. $ 273 (“A Bell operating company may manufacture and provide telecommunications equipment, and manufacture customer premises equipment, if the Commission authorizes that Bell operating company or any Bell operating company affiliate to provide interLATA services under Section 271(d) .... (subject to requirements and exceptions).")

282

See 47 U.S.C. § 549 (governing commercial consumer availability of equipment used to access services provided by multichannel video programming distributors). That section states: “Nothing in this section affects Section 64.702(e) of the Commission's regulations (47 C.F.R. 64.702(e)) or other Commission regulations governing interconnection and competitive provision of customer premise equipment used in connection with basic common carrier communications services.” 47 U.S.C. § 549(d)(2).

283

S. Conf. Rep. No. 104-230, 104h Cong., 2d sess. at 91 (1996) (1996 Act Conference Report).

284

1996 Act Preamble.

285

See Local Competition First Report and Order, 11 FCC Red at 15505-06, 13. Thus, in Section 251 of the Communications Act, Congress imposed special duties on LECs and incumbent LECs to take actions, including making their facilities and services available to competitors on reasonable terms, that would promote competition. 47 U.S.C. § (continued....)

local regulation of personal wireless service facilities siting while preserving local zoning authority generally. In particular, Section 332 (c)(7) provides that the regulation of the siting of personal wireless service facilities by a state or local government “(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”286 Our action here is consistent with the spirit of this provision.

a

114. Fixed wireless technologies provide an alternative to the incumbent LECs' offering of basic and advanced services. In order for a customer to receive fixed wireless service at home or at the office, that customer must be able to place an antenna at the fixed site. To a much greater degree than is the case with the carrier hub site, there is little flexibility to place the antenna at another location. Thus, the inability of a customer to place an antenna at the customer's fixed site will result, with few exceptions, in the denial of fixed wireless service to that customer, whereas the inability of a carrier to place a hub site at a specific site will often not result in a denial of wireless service to customers in that area. Therefore, applying a blanket rule against most restrictions on the placement of these customer antennas is consistent with both the broad pro-competitive goals of the 1996 Act and the specific procompetitive goals of the limitations on state and local regulation set forth in Section 332(c)(7). In particular, unreasonable restrictions on the placement of these antennas almost by definition both effectively prohibit the provision of personal wireless services and disadvantage providers of fixed wireless services as compared to their wireline competitors, thus unreasonably discriminating among providers of functionally equivalent services. Thus, the balance of the pro-competitive goals of the 1996 Act against the goal of preserving local authority is different for these antennas than for hub antennas, and it is reasonable to conclude, in light of the overriding Congressional intent to promote competition, that Congress did not contemplate including these antennas in Section 332(c)(7).

115. For similar reasons, we also think that reading Section 332(c)(7) to exclude customerend antennas is more consistent with the judicial enforcement mechanism established for Section 332(c)(7) non-RF safety complaints regarding state or local government regulation. Requiring aggrieved parties (usually service providers) to seek a judicial remedy against an adverse local zoning decision involving a hub site was intended as an additional measure to preserve local authority. However, the burden on customers of having to litigate individual zoning decisions in court, as opposed to seeking an administrative remedy, would be substantially greater than the burden Section 332(c)(7) imposes on service providers. Thus, again, the balance among Congress' goals is different for customer-end antennas than for hub sites. For all these reasons, we conclude that customer-end antennas are not personal wireless service facilities within the meaning of Section 332(c)(7), and thus that Section 332(c)(7) does not preserve state and local authority over these antennas.

287

116. We also find that there is no constitutional impediment to our forbidding restrictions on the placement of antennas on property within the tenant user's exclusive use, where that user has an interest in the property. In the OTARD Second Report and Order, we held that such rules as applied to (Continued from previous page) 251. In Section 271, Congress required the former Bell operating companies to meet a competitive checklist, and to demonstrate either the existence of facilities-based competition in the local exchange market or the absence of a request for access and interconnection to provide local exchange service, before they are allowed to provide in-region interLATA service. 47 U.S.C. $ 271.

286

47 C.F.R. $ 332(c)(7)(B)(i).

287

Cf. Real Access Alliance Comments at vii. (arguing that the Commission has already exceeded its authority and violated the Fifth Amendment by extending the OTARD rules to include leased property and will further compound the error by extending the rules include new services).