CTIA SEEKS CHANGES BASED ON TOUGHER BIENNIAL REVIEW STANDARD

CTIA outlined policies it said didn’t meet “strict” test under Fox ruling of being necessary to meet public interest. Wide-ranging petition came as group was attempting to convince Commission to delay June 19 auctions of 700 MHz spectrum, with Fri. deadline for oppositions to be filed for CTIA’s review request. In many policy areas cited, CTIA acknowledged highlighted rules were covered under prior petitions or docketed proceedings. Association said in petition for rulemaking that Commission “cannot simply roll these pending petitions and proceedings into the 2002 biennial review… Rather the Commission must apply the legal standard of review set forth in Fox, which dictates that the mandates affecting CMRS carriers must be repealed or modified.” While FCC typically issues staff report under biennial review in even-numbered years and starts rulemaking proceedings based on those recommendations in following year, CTIA said it wanted review on “expedited basis” on all regulations affecting commercial wireless carriers. It urged agency to repeal regulations affecting carriers “where the Commission cannot make an affirmative finding that the rules are necessary to serve the public interest.” In cases of open proceedings, CTIA urged FCC to “accelerate its biennial review obligations” by applying legal standard of biennial review “to the existing record.”

CTIA asked FCC to modify its E911 rules to allow carriers and public safety answering points to negotiate “mutually-agreed-upon implementation period.” FCC last fall granted waivers to most of national wireless carriers, setting deployment schedule for each for rolling out E911 Phase 2 services. Petition cited rules that required carriers to roll out network-based or handset-based E911 location technology within 6 months of public safety answering point (PSAP) submitting request for E911 information. Instead, CTIA argued FCC should let carriers and PSAPs “negotiate a mutually-agreed-upon implementation period.” CTIA asked FCC to modify its rules that 6-month implementation period is tolled while particular PSAP “assembles supporting documentation or during a ‘readiness dispute.'” Group asked Commission to “clarify” that any carrier could comply with mandates of any FCC waiver order for E911 Phase 2. Petition also urged elimination of requirement for wireless local number portability (LNP). Wireless carriers face Nov. 24 deadline for implementing both LNP and thousand-block number pooling and Verizon Wireless has petitioned FCC for forbearance on LNP mandate. CTIA reiterated its call to Commission to forbear or grant transition period so deadlines for pooling and porting didn’t occur simultaneously.

On tower siting, CTIA requested that FCC “streamline” National Environmental Policy Act review process. It cited sites not grandfathered under colocation agreement reached last fall between national and state historic preservation officers, federal officials and wireless industry. That agreement streamlined review procedures for colocation of antennas under National Historic Preservation Act. Under agreement, most colocations on existing towers are exempt from Advisory Council on Historic Preservation (ACHP) siting review procedures. Pact allowed antenna to be mounted on tower built by March 16, 2001, if certain conditions were met. CTIA said that agreement would help streamline Sec. 106 review process under NHPA, but stopped short of grandfathering pre-existing towers and structures that hadn’t cleared Sec. 106 review before March 16, 2001. “Such a result undermines the Commission’s policy and support for colocation,” CTIA said. “Furthermore, it significantly reduces any incentive for carriers and public safety agencies to colocate on the thousands of towers or structures built prior to March 16, 2001.” CTIA said it wasn’t economically feasible for FCC, ACHP or state historic preservation officers to undertake Sec. 106 review of many towers erected before then but that hadn’t undergone Sec. 106 review.

In related siting policy issue, CTIA urged FCC to enforce 30-day limit for state historic preservation officer (SHPO) to provide comments as part of Sec. 106 review process. Group contended “far too many” SHPOs prolonged Sec. 106 review process beyond 30-day comment period to FCC set out in ACHP Sec. 106 procedural rules. “The FCC’s failure or refusal to hold SHPOs to the requisite period of time has resulted in significant delays in the FCC’s approval of applications seeking to construct wireless facilities on or near historic properties.”

In other policy areas, CTIA’s petition urged agency to: (1) Modify its N11 service code rules, which group said “establish a monopoly for the government in provision of information services” such as 311 for local govt. information. (2) Eliminate its customer proprietary network information (CPNI) rules that 10th U.S. Appeals Court, Denver, struck down in 1999. CTIA called for modified rules based on FTC’s Fair Information Practices. Tenth Circuit struck down FCC CPNI privacy rules that required “opt-in” approach in which information couldn’t be shared without customer’s prior consent. Appeals court remanded those rules to the Commission, directing agency to develop alternative approach in which information could be shared unless customer specifically blocked it. U.S. Supreme Court last year declined to review case, allowing 10th Circuit remand order to take effect. (3) Streamline licensing procedures for all commercial mobile radio service providers “to ensure regulatory parity.” CTIA asked FCC to conform PCS license renewal rules with cellular licensing rules. (4) Eliminate duplicative and unnecessary filing requirements, including detailed ownership data on short form applications for auctions. (5) Synchronize its rules with FAA requirements on painting and lighting towers.