Subject: [NEXTEL-1] MEMORANDUM OPINION AND ORDER- History of Interference with Anne Arundel County-WT – Docket No. 02-100

From: [email-masked]
Date: Fri, 15 Aug 2003 10:39:18 -0400

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

In the Matter of

Petition of Cingular Wireless L.L.C. for a Declaratory Ruling that Provisions of
the Anne Arundel County Zoning Ordinance are Preempted as Impermissible Regulation
of Radio Frequency Interference Reserved Exclusively to the Federal Communications
Commission )

WT – Docket No. 02-100

MEMORANDUM OPINION AND ORDER

   Adopted:  July 3, 2003 Released:  July 7, 2003

By the Chief, Wireless Telecommunications Bureau:

TABLE OF CONTENTS
Paragraph No.

I. INTRODUCTION           1
II. BACKGROUND           3
 A. History of Interference with Anne Arundel County      3
  Public Safety Communications
 B. Provisions of Anne Arundel County, Maryland’s Zoning Ordinance    6
 C. The Record in this Proceeding         9
III. DISCUSSION          11
 A. Exclusive Federal Regulation of RF Interference    12
 B. Preemption of the County’s Zoning Ordinance Provisions   18
 C. Remediation of Interference       23
IV. ORDERING CLAUSES        28

APPENDIX: List of Commenters

I.  INTRODUCTION

1.  In this order, we find that federal law preempts provisions of the Anne
Arundel County, Maryland ("County") zoning ordinance involving radio frequency
interference (“RFI”).  The provisions require that, prior to receiving a County
zoning certificate, owners and users of telecommunications facilities must show
that their facilities will not degrade or interfere with the County's public
safety communications systems.    The Ordinance provisions also permit the County
to revoke a zoning certificate where degradation or interference is found.  On
April 23, 2002, Cingular Wireless LLC (“Cingular”) filed a Petition for
Declaratory Ruling that these Ordinance provisions are preempted.   The County
filed a Motion to Dismiss Cingular's Petition claiming the courts, and not the
Commission, have exclusive jurisdiction over final zoning actions of local
governments affecting the placement, construction and modification of personal
wireless service facilities.

2.  For the reasons stated below, we find that the challenged provisions of the
County’s Ordinance regulate RFI, not traditional zoning functions, and therefore
are preempted by federal law.  We therefore grant Cingular's Petition for
Declaratory Ruling and deny the County's Motion to Dismiss.  At the same time, we
remain concerned about interference to the County’s public safety communications
system and we expect that the parties will continue to work cooperatively to
resolve these problems, consistent with our previous guidance.   We therefore
require the County, Cingular and Nextel Communications, Inc. (“Nextel”) to report
to the Commercial Wireless Division of the Wireless Telecommunications Bureau
(Bureau) in 30 and 90 days after release of this Order to describe the progress of
mitigation efforts in the County.

II.  BACKGROUND

A. History of Interference with Anne Arundel County Public Safety Communications

 3.  In 1989, the County began operating a public safety communications system in
the 800 MHz band, which is used by the police department, sheriff’s department,
and fire department.   In 1997, the County began experiencing radio frequency
interference to its public safety communications system from certain wireless
telecommunications networks.   In late 1998, the County wrote to the Commission
concerning these problems, and the County and the carriers subsequently met
several times with Commission staff.   The meetings were helpful in establishing
productive working relationships and addressing many of the County’s interference
concerns.  Nonetheless, due to the engineering challenges created by operating
public safety and commercial systems on nearby frequencies, some interference
issues inevitably remained.

 4.  In 1999, the County determined that because its system was 10 years old and
in order to help remedy some of the interference problems, it would need to
acquire a new public safety communications system.   In March 2001, the County
engaged a consultant for a needs analysis concerning the new system.   Testing by
the consultant revealed 61 existing “dead spots” in areas near commercial radio
station antennas, where the County experienced failures in its public safety
communications.   According to the County, the dead spots put police officers,
firefighters and paramedics in difficult and unsafe situations.   The consultant
found the interference was primarily caused by Nextel and secondarily by Cingular
and that the interference centered around Nextel and Cingular’s tower sites.
According to the consultant, significant carrier input was required for the
configuration of the County’s new system because the causes of interference can
vary considerably and cannot be remedied by a single solution.

5.  The County approached both Nextel and Cingular regarding the interference.
Nextel was reportedly receptive to assisting the County with mitigating
interference by providing transmission information, assisting in site testing,
reconfiguring antennas, changing power levels, installing filters, and engineering
other methods to decrease interference.   However, according to the County,
Cingular initially declined to provide interference assessment information and
participate in interference testing.   Concerned that the $15 million expended on
its proposed new system might be wasted, the County determined that any future
upgrade of its public safety system was dependent on development of a mechanism to
mitigate interference concerns from future telecommunications facilities
placements.

B. The Challenged Provisions of Anne Arundel County, Maryland's Zoning Ordinance

6.  On January 22, 2002, the County adopted amendments to its zoning Ordinance,
which became effective on March 15, 2002, for new facilities and September 11,
2002, for existing facilities.   These amendments provide that prior to receiving
a County zoning certificate, owners and users of commercial telecommunications
facilities must show that their facilities will not degrade or interfere with the
County’s public safety radio systems.   The Ordinance defines “telecommunications
facilities” to include towers, antennas, microwave dishes, and in-building
wireless communications systems.   The Ordinance requires an owner or user to
obtain a zoning certificate prior to “using or altering” any telecommunications
facility and defines the term “altering” to include “any change in configuration,
transmit frequency, or power level.”   The Ordinance requires each applicant to
obtain a certification from an independent consultant acceptable to the County,
before constructing, operating or altering any facility, that the facility or the
applicant’s use of the facility will not degrade or interfere with the County’s
public safety communications system.   In addition, each owner and user must
submit, on an annual basis, a certification from an engineer acceptable to the
County that the radio frequency emissions from each facility meet the applicable
Commission standards and guidelines.   The Ordinance provides that where a
facility or use of a facility degrades or interferes with the County’s public
safety communications system, or if the requisite certifications are not made, the
zoning certificate may be revoked.

7.  Since the time the Ordinance provisions were enacted, the County and
commercial licensees have engaged in discussions concerning possible future
revisions of the Ordinance.   As an outgrowth of these discussions, the County
made revisions to certain provisions of the Ordinance other than those addressing
RFI.   The record also indicates that the County has instituted a number of new
measures to reduce interference and ease the regulatory burden on commercial
carriers, including: 1) eliminating in practice the requirement of independent
engineer certifications, thereby allowing carrier staff engineers to supply all
required certifications; 2) completing a spectrum swap agreement with Nextel,
which would relocate its public safety spectrum to the far ends of the bands
utilized by commercial carriers; and 3) substantially upgrading its public safety
system.   The Ordinance’s provisions relating to RFI, however, remain
substantively unchanged.

8.  Although the record is unclear regarding when it began to do so, it is
undisputed that the County is enforcing the challenged provisions.   While a
number of carriers operating in the County have filed some required
certifications,  several carriers are not doing so.   Stating the impossibility of
compliance with the Ordinance, Nextel and Cingular, neither of which has ever
furnished certifications, assert that the County’s implementation of its Ordinance
is actively obstructing their communications service operations.   Specifically,
they claim that the County is refusing to issue permits for new tower sites, as
well as use permits for existing sites, because their applications do not contain
the non-interference certification.   Cingular has also advised that it has
received correspondence stating that the County will impose fines and penalties
for Cingular’s failure to obtain a use permit with the required certification for
an existing facility for which no application was ever filed.

C. The Record in this Proceeding

9.  Cingular’s Petition was placed on public notice on May 7, 2002.  The
Commission received thirteen comments and four reply comments, the majority of
which supported Cingular’s Petition.  After the comment period closed, four local
governments, the City of Cumberland, Maryland, Village of Schaumburg, Illinois,
City of Irvine, California, and County of Harford, Maryland, submitted ex parte
filings generally supporting the County’s position.   In addition, the Local and
State Government Advisory Committee (“LSGAC”) filed a recommendation that the
Commission should refrain from preempting the Ordinance at least until after the
Commission resolves the pending rulemaking proceeding regarding RF interference
with 800 MHz public safety services.

 10.  On May 24, 2002, the County filed a Motion to Dismiss Cingular’s Petition,
arguing that the courts, and not the Commission, have exclusive jurisdiction over
final zoning actions of local governments.  Cingular filed an Opposition to the
Motion to Dismiss maintaining that the County’s provisions regulate RFI and
therefore this matter falls within the exclusive jurisdiction of the Commission.

III.  DISCUSSION

 11.  As described below, we find that the challenged provisions of the County’s
zoning Ordinance infringe on the Commission’s exclusive jurisdiction over RFI and
are preempted under the doctrine of field preemption.  We therefore grant
Cingular’s Petition for Declaratory Ruling.  In addition, we find that because
these provisions attempt to regulate RFI, rather than traditional zoning
functions, the exclusive jurisdiction of the courts under section 332 of the Act
is not triggered.  Accordingly, we deny the County’s Motion to Dismiss.  We
recognize, however, that resolution of the issue of preemption will not in itself
resolve the interference problems the County has experienced in its public safety
communications system. We expect carriers to render full cooperation with a local
government’s efforts to mitigate interference to its public safety communications
system.  Accordingly, we require the County, Cingular, and Nextel to report to the
Bureau’s Commercial Wireless Division on the status of mitigation efforts in the
County in 30 and 90 days after release of this order.

A. Exclusive Federal Regulation of RF Interference

12.  The Supremacy Clause of Article VI of the Constitution provides Congress with
the power to preempt state law.   The Supreme Court has found that Congress'
preemption power extends to both state and local ordinances.   There are various
forms of federal preemption.   Express preemption occurs when the language of the
federal statute reveals an express congressional intent to preempt state law.
The courts have not found local regulation of RFI expressly preempted.   Field
preemption occurs when Congress has legislated comprehensively, thus occupying an
entire field of regulation and leaving no room for the States to supplement
federal law,  or if an Act of Congress touches a field in which the federal
interest is so dominant that the federal system is presumed to prohibit
enforcement of State laws on the same issue.   The courts have identified field
preemption as the “most pertinent” of the various forms of federal preemption to
the issue of local regulation of RFI.   Under field preemption, Congressional
legislation and an agency’s regulations and decisions determine whether and to
what extent federal law preempts state or local regulation.   Preemption may
result not only from action taken by Congress; a federal agency acting within the
scope of its Congressionally delegated authority may also preempt State
regulation.    It is well settled that federal regulations have the same
preemptive force as federal statutes.

13.  The Commission and the federal courts have consistently found that the
Commission’s authority in the area of RFI is exclusive and any attempt by State or
local governments to regulate in the area of RFI is preempted.   The Commission
addressed this issue almost 20 years ago in 960 Radio.   In that proceeding, a
local zoning board issued a conditional use permit to an FM radio facility subject
to a restriction that the applicant “not operate the new facility so as to produce
electronic interference to existing facilities” or to TV translators.   In a
petition for declaratory ruling, the owner of the FM facility sought to void the
requirement on the ground that “jurisdiction to control interference over the
airwaves rests exclusively with the [Commission].”   The Commission found that
sections 2, 301, and 303(c)-(f) of the Communications Act,  taken together,
“comprehensively regulate interference, [and therefore] Congress undoubtedly
intended federal regulation to completely occupy that field to the exclusion of
local and state governments.”   The Commission noted that Supreme Court  and
Commission  precedent supported this conclusion.  The Commission further found
that “any doubt about [the Commission’s] jurisdiction to regulate interference was
removed” with Congress’ statement in the House Conference Report to the 1982
provisions of section 302 of the Act, which provides:

The Conference Substitute is further intended to clarify the reservation of
exclusive jurisdiction to the Federal Communications Commission over matters
involving RFI.  Such matters shall not be regulated by local or state law, nor
shall radio transmitting apparatus be subject to local or state regulation as part
of any effort to resolve an RFI complaint.  The Conferees believe that radio
transmitter operators should not be subject to fines, forfeitures or other
liability imposed by any local or state authority as a result of interference
appearing in home electronic equipment or systems.  Rather, the Conferees intend
that regulation of RFI phenomena shall be imposed only by the Commission.

For these reasons, the Commission found the local zoning board’s interference
restriction on a radio station in a conditional use permit was preempted under
federal law.

14.  In Mobilecomm, the former Common Carrier Bureau applied the Commission’s
rationale in 960 Radio to invalidate provisions of a local zoning ordinance that
required a paging facility operator to notify the town's planning and zoning
commission when it changed the power and/or frequency of its transmission and
required that "[n]o operation shall be permitted which produces any perceptible
electromagnetic interference with normal radio or television reception in any area
within or without the town."   The Bureau recognized that although Mobilecomm
involved operations in a different service, i.e., public land mobile service
(PLMS), it was still governed by the decision in 960 Radio, which involved FM
radio broadcasting.   The Bureau reasoned that the sections of the Communications
Act and the legislative history that the Commission relied on in 960 Radio
governed the interference at issue in Mobilecomm, “since Title III of the
Communications Act, including sections 301, and 303(c), (d), (e) and (f) applies
to PLMS stations such as that operated by Mobilecomm.”   In preempting the
ordinance, the Bureau stated that the law establishing the Commission’s exclusive
jurisdiction over RFI “is clear” and that the local government “must look to the
Commission for interference regulation.”

15.  Recent federal court decisions are consistent with the Commission’s
conclusions in 960 Radio and Mobilecomm.   In Johnson County, for example, the
Tenth Circuit considered a local zoning provision that was very similar to the
Ordinance provisions at issue here.  In that case, the local zoning authority
adopted an “interference regulation” that prohibited wireless telecommunications
towers and antennas from operating in a manner that interfered with public safety
communications.   The regulation also authorized the county’s zoning authority to
determine when interference existed and, after proper notice and opportunity for a
hearing, to force the offending facility to cease operations.   Citing the
Communications Act,  Commission regulations,  Commission decisions,  and an
informal opinion rendered by the Chief of the Commercial Wireless Division in the
same matter,  the Court determined that “Congress intended federal regulation of
RFI issues to be so pervasive as to occupy the field.”   The Court noted that
“this analysis is consistent with decisions of virtually all courts considering
RFI preemption.”    For these reasons, the Court concluded that the local
regulation was void under the doctrine of field preemption.

16.  Similarly, in Freeman, the Second Circuit considered whether federal law
preempted a zoning permit condition that required the users of a communications
tower to remedy any interference with reception in homes in the area.   The city
zoning administrator had issued notices of violation to a radio station operator,
cellular phone company, and city fire and ambulance service, all of which used the
communications tower, on the grounds that their operations had caused interference
with electronic devices in violation of the zoning permit conditions.  The city’s
zoning board, however, dismissed the notice of violation on the grounds of federal
preemption.  On appeal, the Second Circuit determined that, based on an analysis
of the statute,  legislative history,  Commission regulations  and Commission
decisions,  the field of radio frequency interference was occupied by federal law
and affirmed the zoning authority’s decision that it was preempted from enforcing
the zoning permit condition.    The Court reasoned that “allowing local zoning
authorities to condition construction and use permits on any requirement to
eliminate or remedy RF interference stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.”

17.  Taken together, these Commission and court decisions clearly establish that
the Commission has sole jurisdiction to regulate RFI, to the exclusion of
provisions in local zoning or other regulations.

B. Preemption of the County’s Zoning Ordinance Provisions.

18.  Based on Commission precedent in 960 Radio and Mobilecomm, and the federal
court decisions in Johnson County and Freeman, we find that the County’s
provisions constitute an attempt to regulate RFI and therefore are preempted under
the doctrine of field preemption. A review of the provisions shows that their
intent and effect are to regulate the operations – not the placement, construction
and modification – of licensed facilities.    As in Mobilecomm, the County’s
zoning Ordinance requires all wireless carriers to obtain prior certification from
the County before constructing, operating or altering their facilities.   The
Ordinance also gives the County, similar to the ordinance struck down in Johnson
County, unfettered discretion to determine whether interference exists and when
interference is considered resolved, without any apparent objective standard for
the determination.   Again similar to the Johnson County ordinance, where
interference is found, the Ordinance permits the County to revoke the zoning
permit to force the carrier to cease operations at the offending facility, even
where the facility otherwise complies with all appropriate land use regulations.
The Ordinance’s requirements concerning radio frequency engineering studies
further demonstrate its focus on radio frequency regulation rather than local land
use concerns.   Moreover, under the Ordinance, "facilities" are broadly defined to
include not only structures that are traditionally regulated by zoning ordinances,
such as towers, antennas and microwave dishes, but also facilities that would not
normally be subject to zoning ordinances such as in-building wireless
communications systems.

19.  We disagree with the County’s argument that the provisions are not a direct
regulation of RFI, but rather a “perfectly lawful effort to assure itself that a
carrier is complying with FCC standards.”   The County maintains that the
Ordinance contains no mechanism to order the carrier to change its chosen
configuration, transmit frequency or power level, but rather helps to assure the
collection and updating of reliable information essential to local efforts to
mitigate interference.   The County further states that the Ordinance’s
requirement for a zoning certificate of use when a telecommunications facility is
“altered” is not a direct regulation of RFI.   According to the County, it is not
attempting to substitute its own technical standards or to regulate beyond the
federal guidelines through the Ordinance.  Although the County does not purport to
prescribe particular technical parameters, however, the fact remains that by
asserting authority to prohibit operation that it determines causes public safety
interference, the County is effectively regulating federally licensed operation,
much as in Johnson County and Mobilecomm.  Such regulation of operation is
different in kind from traditional zoning regulation of the physical facility such
as height limitations, setback requirements, screening or painting guidelines,
structural safety standards, and the like.    Therefore, we find that the County’s
Ordinance regulates beyond traditional zoning functions and impermissibly extends
into the regulation of RFI.

20.  For similar reasons, we reject the County’s argument that the Commission
lacks jurisdiction to consider Cingular’s Petition, and we therefore deny the
County’s Motion to Dismiss.  The County argues that Cingular’s Petition should be
dismissed for lack of jurisdiction pursuant to section 332(c)(7)(B)(v) of the
Act,  which in most instances reserves to the courts exclusive jurisdiction over
final zoning actions of local governments affecting the placement, construction
and modification of personal wireless service facilities.   The County also
maintains there can be no “field preemption” because section 332(c)(7)(A) reserves
to localities authority for regulating RFI through their ability to control “the
placement, construction and modification” of telecommunications facilities, except
as expressly limited by section 332(c)(7)(B).   The County maintains that, under
section 332, it shares authority with the Commission in the field of RFI
regulation and that because it has not been shown impossible to comply with both
the Commission’s and the County’s regulations, there can be no conflict
preemption.   The County further maintains that the Tenth Circuit’s decision in
Johnson County  supports its argument that jurisdiction over the instant dispute
resides with the courts and not the Commission because, in that case, the
Commission’s role was “purely advisory” and the matter was ultimately decided by
the federal courts.   Finally, citing decisions from the First  and Fourth Circuit
Courts of Appeals,  the County argues that its authority over zoning of personal
wireless service facilities extends to regulation of RFI, and that even if it were
to deny a zoning permit in a particular case, the courts have not found such
action to constitute a prohibition of wireless services in violation of section
332(c)(7).

21.  We find that section 332(c)(7)(B)(v) does not limit the Commission’s
jurisdiction to consider Cingular’s Petition because the Ordinance provisions do
not regulate the “placement, construction, and modification” of facilities, and
therefore do not fall within the scope of section 332(c)(7).   Specifically, we
disagree with the County’s contention that under section 332(c)(7), the County
“shares” authority with the Commission to regulate RFI.  The County argues in
effect that the provisions in the Telecommunications Act of 1996 expanded local
authority at the expense of the Commission by overruling preexisting decisions
that local regulation of RFI was preempted.  However, section 332(c)(7), which is
entitled "Preservation of local zoning authority," only preserves local "decisions
regarding the placement, construction, and modification of personal wireless
service facilities."   The Conference Report on the Telecommunications Act of 1996
explains that "[t]he limitations on the role and powers of the Commission under [§
332(c)(7) ] relate to local land use regulations and are not intended to limit or
affect the Commission's general authority over radio telecommunications, including
the authority to regulate the construction, modification and operation of radio
facilities."   Thus, the 1996 provisions did not alter the Commission’s general
authority over radio transmissions granted by earlier communications legislation
and affirmed by existing precedent.  Indeed, in Johnson County, the Court
specifically considered the same argument raised by the County and found the
regulation at issue did not involve traditional zoning authority – which concerns
placement, construction, and modification– but rather extended into radio
telecommunications, an area of exclusive Commission authority that is outside
section 332(c)(7).

22.  The County’s reliance on the First Circuit’s decision in Town of Amherst v.
Omnipoint Communications Enterprises, Inc.,  and the Fourth Circuit’s decision in
AT&T Wireless v. City Council of Virginia Beach,  as support for its argument is
misplaced.  Both cases involve traditional land use functions such as neighborhood
aesthetics and set back requirements and do not address a local government’s
authority to regulate technical matters relating to radio transmission.
Moreover, the County’s argument that a land use regulation will not be preempted
under section 332(c)(7) unless there is a general prohibition of wireless
services, or another statutory proscription applies, misses the point.  The point
is that the Ordinance provisions are not a regulation of the placement,
construction, and modification of facilities, but rather a regulation of
facilities operation that intrudes impermissibly into an area of exclusive
Commission authority.  Thus, the Ordinance provisions are preempted for reasons
that implicate neither the substantive provisions nor the jurisdictional
limitation of section 332(c)(7).  For these reasons, we deny the County’s Motion
to Dismiss.

C.  Remediation of Interference.

23.  Finally, the County and LSGAC argue that the Commission should defer ruling
on Cingular’s Petition until after the completion of the 800 MHz interference
proceeding.   In the 800 MHz proceeding, the Commission is considering new methods
and strategies in order to develop long-term measures to alleviate RF interference
from commercial systems.   The County argues that preemption at this time would
disrupt ongoing negotiations between zoning authorities and carriers pursuant to
that proceeding.   The County further suggests that until new rules pursuant to
that proceeding are in place, the Ordinance is necessary to ensure continued
discussion between the carriers and the County to aid ongoing interference
mitigation.

24.  We disagree that the pendency of the 800 MHz proceeding is sufficient reason
to delay action in the instant proceeding.  The Commission’s consideration of new
ways to alleviate ongoing interference has no bearing on the fact that the
County’s existing requirements unlawfully infringe on Commission jurisdiction.
Moreover, the record includes ample evidence that the Ordinance provisions are in
fact impeding service in the County, contrary to Commission policy.  For example,
Cingular and other carriers recently notified the Commission that the County is
refusing to issue permits for new tower sites, as well as use permits for existing
sites, because their applications do not contain the non-interference
certification.   Cingular also claims that, as a direct result of its inability to
comply with the Ordinance, it has been unable to modify certain cell sites within
Anne Arundel County, causing significant delay in the provision of wireless
service.   Cingular has advised that it has received correspondence from the
County threatening fines and penalties for its failure to obtain a use permit with
the required certification for an existing facility for which no application was
ever filed.   According to another commenter, because changes in modulation rates,
bandwidth, power levels and frequencies occur in wireless facilities on a
minute-by-minute basis, the County’s RFI studies requirement would render the
telecommunications facilities on its towers inoperable.   In addition, we are
concerned that the proliferation of similar but potentially inconsistent local
government regulations across the nation could impose substantial costs that would
retard the spread of wireless systems.

25.  At the same time, the parties do not lack means to address interference
issues in the near term.  Pending resolution and implementation of the 800 MHz
proceeding, the Bureau has publicized a structure for interference mitigation
through the Best Practices Guide, which was compiled by an outside working group
of experts and is designed to provide a short- to mid-term framework for local
governments and carriers to address instances of commercial interference with 800
MHz public safety systems.   Based on the record, it appears that the technical
staffs of the County and the carriers are currently addressing interference issues
as contemplated by the Best Practices Guide.   For example, Cingular works with
the County and coordinates with other carriers to resolve any interference with
the County’s public safety system caused by Cingular’s operations.   The record
also indicates that Cingular has designated an RF engineering contact to
coordinate with the County and to provide the County site data, internal company
interference test data, configurations to optimize sites for reduced interference,
and operational dates for new sites.   Cingular has reported that it regularly
monitors for potential interference cases through a national website and that when
it learns of a potential case of interference, the company responds to the
relevant parties, often before Cingular’s involvement with the interference
becomes known.   As a result of those and other efforts, the CMRS carriers and the
County have reduced the 61 dead spots claimed in the County’s original filings to
21.  The Commission is working expeditiously toward measures in the 800 MHz
proceeding that we hope will help alleviate many current interference issues.
Nonetheless, in order to assure that interference problems in the County are
addressed on a timely basis, we expect the parties to continue to cooperate in
their mitigation efforts consistent with the Best Practices Guide.

26.  While we are encouraged by the progress to date and evidence of ongoing
cooperation, we share the County’s concern that Cingular, Nextel, and other
carriers remain committed partners with the County in ongoing interference
mitigation efforts.  In particular, we note indications in the record that
Cingular in the past has not always cooperated fully in the County’s efforts to
resolve interference problems with its public safety communications network.
Particularly in light of recent events and the nation’s heightened concern
regarding homeland security, we expect carriers will make every effort to assist
local governments addressing public safety interference issues, and we are
committed to taking an active role where necessary to assure that such cooperation
occurs.  Therefore, we direct the County, Cingular and Nextel to report to the
Bureau’s Commercial Wireless Division in 30 and 90 days after the release of this
Order to describe the progress of mitigation efforts in the County.  We expect
that these reports will show continued concerted efforts to address remaining
instances of interference with the County’s public safety communications system.

IV.  ORDERING CLAUSES

 27.  Accordingly, IT IS ORDERED that, pursuant to Sections 2(a), 4(i), 301,
302(a), 303(c), 303(d), 303(e), 303(f), and 303(r) of the Communications Act of
1934, as amended, 47 U.S.C. §§ 152(a), 154(i), 301, 302(a), 303(c), 303(d),
303(e), 303(f), 303(r), and section 1.2 of the Commission’s rules, 47 C.F.R. §
1.2, the Petition filed by CINGULAR WIRELESS LLC on April 23, 2002, is GRANTED.

 28.  IT IS FURTHER ORDERED that the Motion to Dismiss filed by ANNE ARUNDEL
COUNTY, MARYLAND, on June 3, 2002, is DENIED.

 29.  IT IS FURTHER ORDERED that Anne Arundel County, Maryland, Cingular Wireless
LLC, and Nextel Communications Inc. SHALL FILE reports with the Commercial
Wireless Division of the Wireless Telecommunications Bureau regarding mitigation
efforts in the County 30 and 90 days after release of this order.  We encourage
the parties to file their reports jointly.  Three copies of each report should be
addressed to Gary Oshinsky, Commercial Wireless Division, Wireless
Telecommunications Bureau, Federal Communications Commission, 445 12th St. SW,
Washington, D.C. 20554.

 30.  This action is taken by the Chief, Wireless Telecommunications Bureau,
pursuant to authority delegated by Section 0.331 of the Commission’s rules.  47
C.F.R. § 0.331.

     FEDERAL COMMUNICATIONS COMMISSION

      John B. Muleta
      Chief,
      Wireless Telecommunications Bureau
 APPENDIX

LIST OF COMMENTERS ON CINGULAR’S PETITION

Comments

1. ALLTEL Communications, Inc. (“ALLTEL”)
2. Anne Arundel County, Maryland (“County”)
3. AT&T Wireless Services, Inc. (“AWS”)
4. Cellular Telecommunications & Internet Association (“CTIA”)
5. Mark F. Hutchins (“Hutchins”)
6. National Association for Amateur Radio AKA American Radio Relay League, Inc.
(“ARRL”)
7. Pinnacle Towers Inc. (“Pinnacle”)
8. Sprint Corporation (“Sprint”)
9. Telecommunications Industry Association (“TIA”)
10. United States Cellular Corporation (“USCC”)
11. Verizon Wireless (“Verizon”)
12. W. Lee McVey PE
13. Weblink Wireless, Inc. (“WebLink”)

REPLY COMMENTS

1. Anne Arundel County Maryland (“County”)
2. Cingular Wireless LLC (“Cingular”)
3. Rural Cellular Association (“RCA”)
4. VoiceStream Wireless Corporation (“VoiceStream”)

------------------------ Yahoo! Groups Sponsor ---------------------~-->
Buy Ink Cartridges or Refill Kits for Your HP, Epson, Canon or Lexmark
Printer at Myinks.com. Free s/h on orders $50 or more to the US & Canada. http://www.c1tracking.com/l.asp?cid=5511
http://us.click.yahoo.com/l.m7sD/LIdGAA/qnsNAA/61FxlB/TM
---------------------------------------------------------------------~->

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/