for thurston county verizon wireless vail road wireless ...€¦ · 03/05/2018 · “smith ranch...

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DESCHUTES NEIGHBORHOOD GROUP In Care of Chris Nubbe PMB 377, 1001 COOPER POINT RD SW, STE 140 OLYMPIA, WASHINGTON 98502 [email protected] (360) 353-4861

APPELLANTS POST HEARING BRIEF – Page 1

BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

In the Matter of the Appeal of Chris Nubbe and Allison Baker on behalf of Deschutes Neighborhood Group, Of the May 3, 2018 SEPA Mitigated Determination of Nonsignificance For the Verizon Wireless Vail Road Wireless Communications Facility Special Use Permit

No. APPL 18-106835 VE Verizon Wireless Vail Road Wireless Communications Facility Special Use Permit No, 2015103966 APPELLANTS POST HEARING BRIEF

I. STATEMENT OF PROCEDINGS

This appeal arises out of an initial request by Verizon Wireless for Thurston County to approve

a special use permit (SUP) for construction of a 150-foot-high monopole wireless

communications facility (WCF) and associated antennas, microwave dish, 30kw diesel back-up

generator, and cabinets at a physical location of 16224 Vail Road SE, Yelm, Washington. This is

the second appeal of this project made by the Appellant, Chris Nubbe and Alison Baker on

behalf of Deschutes Neighborhood Group. In the first appeal, the Thurston County Hearings

Examiner found that the determination of nonsignificance (DNS) was clearly erroneous, granted

the State Environmental Policy Act (SEPA) appeal, and remanded the environmental threshold

determination to the SEPA Responsible Official for further study of impacts to priority species

mailto:[email protected]

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and habitats. Because the appeal was granted, the SUP application was not decided. Since that

time two bird studies of the site were conducted, one by Verizon and one by the appellants.

Verizon paid for and submitted an avian risk assessment report which reviewed the results of the

bird studies. Thurston County also obtained review comments on these studies and reports from

Washington Department of Fish and Wildlife (WDFW) and US Fish and Wildlife (USFW). On

May 3, 2018 Thurston County issued a Mitigated Determination of Nonsignificance (MDNS).

Appellants timely filed an appeal of the MDNS which specifically designated sections

17.09.160, 17.15.410, 20.60.060, 24.05.050 of the Thurston County Code (TCC) on the appeal

document. The appeal of 17.15.410 is noteworthy in that it states “ any aggrieved person may

appeal an administrative decision made under this title” and one of the issues specifically

appealed in this current action is the administrative decision that was made by Thurston County

Officials in considering this SUP application complete enough for a DNS and MDNS to have

been issued. The appellants contend that the SUP application remains incomplete as required by

TCC, directly violates applicable TCC, and as such no MDNS may be issued regarding the

proposed facilities. For these reasons the MDNS must be vacated and the SUP application must

be denied.

An open record hearing on the SUP request and SEPA appeal was held before Thurston

County Hearings Examiner Sharon Rice on September 11 and September 14, 2018. Once post

hearing briefs are simultaneously filed by Appellants, Applicant, and County on September 21,

2018 the record is closed and Hearings Examiner will render her final decision.


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II. ARGUMENTS

In order for an effective SEPA review of a project to be conducted it is crucial that accurate

and complete information about critical areas and other project specific details and studies be

provided as required by TCC. According to TCC 20.03.030(2), the inclusion of "shall" in a

regulation indicates the requirement is mandatory. During cross examination of Tony Kantas,

who is the SEPA responsible official for this project, Tony could not answer how the TCC

defines the word “shall”. Literally all of the issues previously noted as incomplete by the

appellant such as, the project plans fail to show critical areas and buffers, there is no valid

property affidavit, the tower easement is expired, no valid balloon test was performed at the

final structure height nor photographic evidence presented as required, WCF site violates the

1000 foot setback from wetlands and wildlife habitats, applicant has failed the burden of proof to

show the need for the tower as there is already cell phone coverage in the area, no evidence was

presented of a coverage gap, no evidence showing that there are no less impactful alternatives to

the WCF, and no overriding public benefit that would justify the need for a new WCF; all

include the wording “shall” be provided in their respective sections of the TCC 1, 2. Upon further

cross examination, Tony Kantas stated that he does require applicants to correct and revise

erroneous and false information and include missing or omitted required information, yet over 3

years after application was made for this project, required elements of this project record have

not been corrected or completed3. Had the required critical areas and buffers been shown on the

__________________________________ 1 TCC 20.60.030 – Contents of Application 2 TCC 20.33 – Wireless Communication Facilities 3Appellants Exhibits D16, D30


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project plans before environmental reviews were started showing that the WCF site is completely

overlapped by 1000 foot buffers from wetlands and wildlife refuge, the determination that this is

not a viable location for a WCF could have been made before more investments in plans and

studies were made. Tony Kantas did state during cross examination that all of his DNS and

MDNS determinations are reviewed and approved by his supervisors and Thurston County

Prosecuting Attorney who knew or should have known that the project does not conform with all

applicable TCC requirements.

Applicants Trileaf Bird Study states on page 11 that “the only species observed flying

over the proposed cell tower location were northwest crows, at approximately 200 to 400 feet off

the ground, and one American robin”. From this they conclude that the Tower is not in a flyway

and that the birds always fly over the pasture areas going around the forested area and tower site.

Both oral and written testimony as well as sample data sheets and flight paths were presented by

numerous participants in the appellants bird study which documented a wide variety of birds

such as trumpeter swans, bald eagles, red tail hawks, ducks, geese, and others flying directly over

the wooded WCF site4.

In the addendum to the Thurston County Staff Report and during oral testimony, Tony

Kantas stated that Thurston County officially does not consider the Smith Ranch Restoration

project to be a wildlife refuge even though WDFW has commented several times that the Smith

Ranch Restoration Project should be considered as a wildlife refuge5. Oral and written testimony

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4 Appellants Exhibit D33, D42 5Staff Report Exhibit C6 Attachment G, Applicants Exhibit V25, Appellants Exhibit D4


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provided by Appellants documented that the Smith Ranch Restoration project has been ongoing

since 2007 involving agreements and contracts between the Cities of Olympia, Lacey, and Yelm,

the Squaxin Tribe, the Nisqually Tribe, Washington State Department of Ecology, the South

Puget Sound Salmon Recovery Group, The State of Washington Recreation Conservation

Office, and others. Approximately $4,116,020 of funds that include some state and federal

sources have been allocated for the Smith Ranch Restoration projects which have required both

Thurston County and US Army Corps of Engineers Permits for construction that is scheduled to

be complete December 2018. The Municipal owners of the Smith Ranch Restoration project are

contractually required to maintain these improvements for a period of 10 years as required by

Federal Funding, and have ongoing 5 and 10 year renewals built into their interlocal agreements.

The 194 acre parcel is actively being restored to improve water holding capacity, recreate

historic wetlands, and improve wildlife habitat for Coho salmon and others 6. Thurston County

Code does not define the term “wildlife refuge” used in TCC 20.33.080(2)(e)(i). There is a

requirement that the parcel be publicly owned but there is no suggestion that a “wildlife refuge”

must be a formally designated area. In fact, the Smith Ranch Mitigation area clearly meets the

Random House College Dictionary definition of “Refuge” as “a place of shelter, protection, or

safety”. Darric Lowery of WDFW said in an 12/22/15 email response to Tony Kantas that” I

have been working with the cities associated with the water rights mitigation, and there

consultants to develop restoration strategies and a wildlife management plan for the mitigation

_________________________________________ 6 Appellants Exhibit D28, see Summary, Initial Acquisition and Restoration Assessment of the Smith Ranch prepared by Anchor QEA LLC, 2010, Section 4. Restoration Opportunities at the Smith Ranch, Agreements, Plans, Permits, and other sections.


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property. The intent, from my understanding, is to develop a publicly own refuge for Fish and

Wildlife resources” 7(emphasis added). In a later email from Darric Lowery WDFW to Tony

Kantas on 2/22/16 Darric Lowery states “ I would like to call attention to my prior comments

regarding the new publicly owned refuge at the “Smith Ranch” floodplain area that is directly

adjacent to and within 1,000 feet of the proposed project site. The cities of Olympia, Yelm, and

Lacey acquired the property as part of Washington State Department of Ecology mitigation

requirement connected to a recent water rights agreement. The “Smith Ranch Wildlife Area” is

actively undergoing site restoration and wetland rehabilitation/enhancement efforts. I have this

knowledge because I have been providing technical assistance for the past year to the stakeholder

group that is designing and implementing the mitigation efforts. During my site visits at the

“Smith Ranch Wildlife Area” I have observed geese, ducks, beavers, coyotes, songbirds, herons,

and salmonids species that are actively using the available priority habitat. Upon the completion

of the proposed wetland rehabilitation I presume that the wildlife area will attract a more diverse

and larger abundance of wildlife” 8. Last in reference to Tony Kantas oral testimony that the

Smith Ranch restoration project cannot be considered a wildlife refuge because it is not a

nationally recognized/listed refuge, minutes taken from a Thurston County Planning

Commission Meeting 4/16/03 discussing the proposed changes to the draft document entitled

“Wireless Communication Facilities and Antenna Support Structures, Proposed Amendments to

the Thurston County Code” regarding 20.33.030 “Commissioner Cole requested clarification

concerning the wording… publicly owned wildlife refuges…. A discussion occurred, It was

_______________________________________________

7Appellants Exhibit D6 8Staff Report Exhibit C1 Attachment BBB


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suggested to change the wording to read: …state and locally owned wildlife refuges.. The

planning commissioners agreed” 9 (emphasis added). Thurston County has erred in not

considering the Smith Ranch Mitigation Area as a wildlife refuge because “it has never been

declared or certified as a wildlife refuge” 10. The Smith Ranch Restoration is locally and

publicly owned as intended by the Thurston County Planning Commission and required by

current TCC. It already contains wildlife and priority habitats. It has been acknowledged and

approved at state and federal levels through the state and federal funding it has received, and

there is no requirement that it be declared or certified as a wildlife refuge in the TCC. The Smith

Ranch Restoration project meets all of the criteria of a “Wildlife Refuge” both by common

definition, use, and by TCC.

Minimizing potential impacts to birds from new proposed communications towers

incorporates the elements of tower design as well as the location of the facility. While the

applicant makes a reasonable case for how the proposed tower design will minimize effects to

birds due to limited height, the absence of guy wires, and the absence of lighting they basically

ignore the element of tower location in minimizing potential impacts to birds. According to the

testimony of applicants consultant, Dr. Kerlinger, the proposed tower design could be

constructed anywhere with no impacts to birds. However during cross examination, Dr.

Kerlinger admitted that none of the studies he cited or projects he referenced match the

topography, weather, habitat, or tower design that this site has so it is just his opinion that there

will be no adverse impacts to birds at this site. Recognizing the state of the science about impacts

_______________________________________________________

9Appellants Exhibit D41, page 8, paragraph j 10Staff Report Exhibit C6, page 6, #5


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to birds from communications towers and the obvious logic of reducing potential impacts by

avoiding bird concentration areas, the USFWS April 2018 Recommended Best Practices for

Communication Tower Design, Siting, Construction, Operation, Maintenance, and

Decommissioning clearly states that “.. All new towers should be sited to minimize

environmental impacts to the maximum extent practicable… c. Towers should not be sited in or

near wetlands, other known bird concentration areas (e.g.,state or federal refuges, staging areas,

rookeries, and Important Bird Areas), or in known migratory bird movement routes, daily

movement flyways, areas of breeding concentration, in habitat of threatened or endangered

species, key habitats for Birds of Conservation Concern, …. d. Towers should avoid

ridgelines, coastal areas, wetlands or other known bird concentration areas” 11(emphasis added).

Michael Green, Deputy Chief for the USFWS Pacific Region Migratory Birds and Habitat

Program, highlighted his concern about the proximity of the proposed tower to nearby wetlands

in his email to Tony Kantas 12. Thurston County Land Use Code adopts the same cautionary

approach to reducing potential impacts to birds by avoiding known bird concentration areas by

requiring a 1,000 foot buffer between new communications towers and wetlands, staging areas,

or rookeries supporting birds listed as priority species by WDFW 13. A formal review of the two

bird studies noted that “WDFW finds that up to10 species listed as priority according to the

WDFW PHS program/federally endangered or threatened/species of local importance were

documented in the study area and may occasionally fly to and from the wetlands, staging areas,

_________________________________________________________

11 Staff Report Exhibit C6, Attachment I, page 2 paragraph 3c and d 12 Staff Report Exhibit C6, Attachment H 13 TCC 20.33.080(2)(e)(i))


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or rookeries that are within 1,000 ft of the proposed tower site... the proposed cell tower

would be within 1,000 ft of two waterfowl concentration areas (163rd wetlands, Smith Ranch

Mitigation Area), one of which serves as a publically owned refuge” 14.

It is uncontested fact from the two bird studies conducted, reviews and testimonies

provided, that the bird species identified, numbers counted, and locations reported, were present

as reported. In addition to the 10 species listed as Priority by WDFW, 50 species are listed in the

Migratory Bird and Treaty Act (MBTA), 3 are listed as Birds of Conservation Concern, Bald

Eagles are protected by the Bald and Golden Eagle Protection Act, and the Yellow-billed

Cuckoo that was reported in the Trileaf Study is listed as a State Endangered and Federally

Threatened Bird. Current WDFW status report on the Yellow-billed Cuckoo is that there have

only been 20 sightings of these birds in Washington State since the 1950s and none in Thurston

County. The 2018 USFW Tower Guidelines make it clear that “Towers should not be sited …

in habitat of threatened or endangered species, key habitats for Birds of Conservation

Concern..” 15.

Shortly after the Congressional enactment of the MBTA, Justice Oliver Wendell

Holmes, in an early test of the preemption of international law over a state's authority, found that

the treaty protected wild birds even against a state, and that the statute was a valid extension of

the treaty power. The State of Missouri had challenged a U.S. Game Warden's authority over

birds in the state. The high Court found that the federal enabling statute (MBTA) was a valid

exercise of Congress's powers under the necessary and proper clause, and that the treaty

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14 Staff Report Exhibit C6, Attachment G 15 Staff Report Exhibit C6, Attachment I, page 2 paragraph 3c and d


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preempted state sovereignty under the Tenth Amendment as a means of carrying out "matters of

the sharpest exigency for the national wellbeing” 16. Article VI of the U.S. Constitution

(Supremacy Clause) mandates that all treaties are the Supreme law of the land -- which includes

treaties protecting migratory birds. In pertinent part: This Constitution, and the laws of the

United States which shall be made in pursuance thereof; and all treaties made, or which shall be

made, under the authority of the United States, shall be the supreme law of the land; and the

judges in every state shall be bound thereby, anything in the Constitution or laws of any State to

the contrary notwithstanding 17 (emphasis added). The enactment of the Telecommunications Act

of 1996 (TCA) did nothing to impair the effectiveness of the MBTA or its companion, the Bald

and Golden Eagle Protection Act. House Report No. 104-204 specifically recognized that the

savings clause in the TCA guaranteed that existing Federal law would not be affected by its

provisions except as specifically stated in the language of the law. "Subsection (c) provides that

nothing in the Act shall be construed to modify, impair, or supersede any other Federal law other

than law expressly referred to in this Act" 18(emphasis added). The House Report also shows that

protection of wildlife was and is a priority Congressional concern, and one that overrides the

FCC's safety regulations: "....Yellowstone National Park or a pristine wildlife sanctuary, while

perhaps prime sites for an antenna and other facilities, are not appropriate [tower sites] and use

of them would be contrary to environmental, conservation, and public safety laws" 19 (Emphasis

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16 State of Missouri v. Holland, 252 U.S. 416, 433 (1920), citing Andrews v. Andrews 188 U.S. 14, 33.

17 United States Constitution, Article VI, excerpted 18See Attachment 1, Official Copy of House Report 104-204 page 124 Subsection c 19See Attachment 1, Official Copy of House Report 104-204 page 95


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added). In applying FCC guidelines, Congress plainly intended exceptions to be made where

environmental, conservation, and public safety values are at stake.

In Washington State, the Washington State Administrative Code (WAC) 220-610-110

provides for the listing and protection of endangered, threatened, and sensitive wildlife species

and the Revised Code of Washington (RCW) 43.21C.010 State Environmental Policy Act

Purposes are (2) “to promote efforts which will prevent or eliminate damage to the environment

and biosphere; (3) “and to stimulate the health and welfare of human beings”. Thurston County

has developed a draft Habitat Conservation Plan to comply with required federal endangered

species act protections. Likewise TCC 17.15.100 - Statement of policy for critical areas

paragraph c. “To protect unique fragile and vulnerable elements of the environment “. TCC

24.01.005 Thurston County Critical Areas Ordinance 24.01.010- Purpose, These Regulations are

intended to: “B. Identify and protect the functions and values of unique, fragile, and vulnerable

elements of the environment such as fish and wildlife habitats, wetlands, and other ecosystems;

D. Recognize and address cumulative and adverse impacts that could degrade or deplete water

resources, wetlands or fish and wildlife habitat… F. Protect critical areas, associated buffers

designed to protect the function of critical areas, … by: directing activities not essential in such

areas to other locations”. TCC 17.09.150 – State Environmental Policy Act Substantive

Authority D1. “ The county shall use all practicable means, consistent with other essential

considerations of state policy, to improve and coordinate plans, functions, programs and

resources to the end that the state and its citizens may: a. Fulfill the responsibilities of each

generation as trustee of the environment for succeeding generations; b. Assure for all people of

Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;


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c. Attain the widest range of beneficial uses of the environment without degradation, risk to

health or safety, or other undesirable and unintended consequences; e. Maintain, wherever

possible, an environment which supports diversity and variety of individual choice;

2. The county recognizes that each person has a fundamental and inalienable right to a healthful

environment and that each person has a responsibility to contribute to the preservation and

enhancement of the environment.” From these codes it is evident that both Washington State and

Thurston County agencies are required to protect wildlife, a provision which is not preempted by

the TCA because the TCA preemption applies only to adverse effects on human health.

The Federal Communication Commission’s (FCC) regulations concerning RF emissions

are specifically limited to human health. Taken from the FCC’s own website, headed “RF

SAFETY PROGRAM” the FCC states that its RF emissions rules “are designed to protect

public health” and to constitute “limits for human exposure to RF emissions” 20. The Federal

Courts have squarely held that the FCC’s preemptive rules are limited to “health risks” 21.

It is undisputed that the FCC does not regulate RF emission levels on the basis of the length of

exposure, or non-thermal effects. Until such time as the FCC regulates RF emissions based on

these factors and others like them, state and local agencies have a public duty to prevent harm to

the public and environment from unregulated emission levels of unknown risk of potential harm.

To understand this issue of regulatory coverage, think of the TCA preemption provision as a

traffic signal: just because the FCC has given a licensee a "green light" to build and operate a

tower at a certain frequency and power level, does not mean the licensee is also free to drive on

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20 http://www.fcc.gov/oet/rfsafety/rf-faqs.html#Q10. 21 Cellular Phone Taskforce, 205 F.3d 82, at 88 (2d Cir. 2000):

mailto:[email protected]://www.fcc.gov/oet/rfsafety/rf-faqs.html#Q10.

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the wrong side of the road, ride on a sidewalk, crash into other vehicles, or run over small

children. It just means the licensee cannot be prevented by state and local government from

proceeding when the emission level light is "green" on that ground alone. Any other harmful

behavior by the licensee is left for local police powers to deal with. Most agencies have thought

their authority was limited to aesthetic issues, but the statutory language leaves open all

considerations "to the extent that" they are not covered by the FCC guidelines -- as the House

Report's reference to "environment, conservation, and public safety laws" (supra.) makes clear.

Here non-thermal biological effects are the equivalent of the wrong side of the road; the

sidewalk; other vehicles; and small children. They are not regulated by the FCC and so must be

regulated by the local police agency -- here, Thurston County. Nothing prevents a state or local

government from protecting against these threats to public and environmental health and safety

unless and until the FCC itself issues covering regulations. A perfect example of a non-

preempted restriction of wireless transmissions is the establishment of a local buffer zone -- e.g.:

no tower may be built or operated closer than 1000 feet from schools, playgrounds, wetlands,

wildlife refuges and residences. Until the FCC itself adopts a different buffer zone based on

valid independent research, state and local governments are free and obligated to do so. Local

siting agencies may not be arbitrary and capricious; they must base their actions on substantial

evidence; they must give their reasons in writing; and they must not abuse discretion -- but they

are free to act "to the extent that" the FCC has not already done so.

Although there has been extensive discussion throughout these appeals on adverse

impacts the proposed WCF may cause through bird collisions, applicant provided no peer

reviewed studies taken from towers of similar build in similar locations and climate that


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demonstrate no risk of bird collisions. Written and Verbal testimony provided by Dr. Albert

Manville raises considerable concerns regarding bird tower collisions which could be avoided

and or minimized using the precautionary principal of not locating the tower near wetlands and

wildlife refuges as recommended in the 2018 USFW Tower Guidelines22. In SEPA where there

is no definitive factual data to evaluate harmful affects, a worst case scenario is assumed that

harm will occur and preventive/protective measures are taken until a full EIS can be conducted

providing more definitive information and steps to be taken. In this case, denying approval of the

tower SUP and Vacating the MDNS as justified by the record will eliminate the risk of harm and

eliminate the need for an EIS.

Concerning non-thermal adverse affects of RF emissions from the proposed WCF on

wildlife, appellants have provided multiple peer reviews studies documenting the disorientation

effects of RF emissions on birds 23. Written testimony regarding harmful non-thermal effects of

RF emissions on wildlife have also been presented by Dr. Albert Manville 24. Taken from

applicants NIEA Report maximum calculated levels of radiation certified by Verizon’s own

engineer for this facility at the base of the tower 6 feet above ground level are 0.000528 mW/cm2

(this converts to 0.528uW/cm2 ) 25. While this report goes on to state that this level is only

0.1132% of the maximum permissible exposure allowed for the general population, this level of

0.528uW/cm2 has also been found to cause irreversible infertility in mice, increase risk of cancer,

increase risk of leukemia in children, and other harmful effect as documented in the Bioinitiative

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22See Attachment 2 23Appellants Exhibit D44, D15 24Appellants Exhibit D34, D37, D38, 25 Staff Report Exhibit C1, Attachment ee


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Report 26. Using this same calculation presented in the NIEA report and changing one variable

distance to transmitter from the 146 ft Verizon used to estimate ground level exposure to 10 ft to

estimate the RF emissions a Bald Eagle nesting on the WCF might receive, calculated RF

emissions exceed the highest levels of exposure documented on the Bioinitiative Report. While

Dr. Kerlinger provided oral testimony during the hearing about numerous bald eagles nesting on

towers in Florida and successfully rearing young, what this really means is that each generation

of eagles raised on these cell towers exposed to these RF emission levels will be one generation

closer to irreversible infertility which has been demonstrated to occur in mice in 5 generations at

much lower RF emission levels. Causing extinction and sickening of birds is strictly forbidden

by the MBTA and Bald and Golden Eagle Protection Acts which as treaties preempt the TCA.

For these reasons the proposed WCF can and must be denied based on all evidence of harm.

Significant additional studies on non thermal effects of RF emissions are found in Attachment 3.

Federal Courts have already upheld some circumstances in which consideration of RF

emissions by a state or local agency is not preempted by the TCA. One is where a state or

municipality bases its choice between two sites for the construction of a WCF in order to

minimize the level of RF emissions that would affect the surrounding area using the scientific

principle of "prudent avoidance." 27. The second is where a state or local governmental entity

acts in a proprietary, as opposed to a regulatory, capacity. 28 TCA preemption does not bar a

school district from imposing conditions regarding RF emissions in the lease of its own property

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26Appellants Exhibit D16 page 96 27 New York SMSA Limited Partnership v. Town of Clarkstown, 99 F.Supp. 2d 381 (S.D.N.Y.

2000). 28 Sprint v. Spectrum L.P. v. Mills, 283 F.3d 404 (2d Cir. 2002)


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to a wireless telecommunications provider. Here, the applicant has failed to offer any alternative

site to give Thurston County an opportunity to satisfy the "prudent avoidance" principle, to

reduce RF emissions that wildlife and nearby residents located across the street from the site

would be subjected to. TCC 20.33.080 1) requires an applicant to examine alternate sites that

may be more acceptable to the community but none have been offered as alternatives to this site.

The application should be denied on that basis alone.

When conducting a SEPA review of a proposed WCF and weighing adverse impacts

against benefits, the question of whether or not there is a genuine need for the tower must always

be asked. Applicant is required under TCC 20.33.070(2), 20.33.060, 20.33.080 to provide the

burden of proof that there is a need for the tower and that no less impactful alternative to the

tower is available. Applicant has not done this. The Second Circuit’s decision in Sprint Spectrum

v. Willoth held that a state agency has a duty under state law to minimize the impact of the

erection of a proposed cell tower 29. Following that decision, the Third Circuit stated in APT

Pittsburgh Limited Partnership v. Penn Township 30: In order to show a violation of TCA

subsection 332 (c)(7)(B)(i)(II) under Willoth, an unsuccessful provider applicant must show two

things. First, the provider must show that its facility will fill an existing significant gap in the

ability of remote users to access the national telephone network. In this context, the relevant

gap, if any, is a gap in the service available to remote users. Not all gaps in a particular

provider’s service will involve a gap in the service available to remote users. The provider’s

_________________________________________________ 29 Sprint Spectrum v. Willoth, 176 F.3d 630 (2d Cir. 1999) 30 APT Pittsburgh Limited Partnership v. PennTownship, 196 F.3d 449, 480 (3d Cir. 1999)


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showing on this issue will thus have to include evidence that the area the new facility will serve

is not already served by another provider 31. Second, the provider applicant must also show that

the manner in which it proposes to fill the significant gap in service is the least intrusive on the

values that the denial sought to serve. This will require a showing that a good faith effort has

been made to identify and evaluate less intrusive alternatives, e.g., that the provider has

considered less sensitive sites, alternative system designs, alternative tower designs, placement

of antennae on existing structures, etc.

In the first appeal appellants demonstrated existing wireless service coverage of the

Verizon “dead zone” by successfully conducting cell phone calls throughout the area and

filming the results on camera as well as by measuring signal strength and by obtaining coverage

maps of the area provided by Verizon, AT&T, Sprint, and T- Mobile. All wireless providers

except for T-Mobile showed complete coverage of the area in question32. Based on this

considerable evidence, even if the applicant had provided quantifiable dropped call counts or

showed why roaming arrangements with the other 3 service providers were inadequate, they

would still have failed to justify the need for the tower as wireless phone service is already

provided.

III. CONCLUSIONS

1. An incomplete, inaccurate, SUP application containing false misleading information and

omissions of mandatory requirements lays the ground work for an inaccurate and erroneous

SEPA determination. As appealed in the SUP portion of this hearing, the SUP application is

___________________________________________________

313rd Circuit in Omnipoint Communications Enterprises v. Newton Township (July 13, 2000), 32 Appellants Exhibit D14


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incomplete based upon a long list of mandatory requirements that have not been complied with

such that the county erred making an administrative decision that the SUP was complete and

ready for a SEPA determination. For this reason the Sup must be denied. Likewise the same

incomplete, inaccurate false misleading information and omissions that occurred in the SUP have

caused the county to err in issuing a MDNS which must be vacated. There is always going to be

some adverse impact from these cell towers. The fact that the best mitigation of harm for this

project would be not to build the tower has been avoided in part by procedural SUP errors that:

a.) did not show the adverse affect to the view corridor of Mount Rainier which

would have triggered the investigation of alternate WCF sites.

b.) The fact that the applicant was not required to provide and cannot satisfy the

burden of proof to justify the need for building the tower would also prevent this tower

from being built (the area is already served by wireless phone service).

2. The county erred in focusing only on the physical design on the proposed tower to reduce

impacts to birds and not on the aspect of siting or location of the tower to further minimize

impacts. The 2018 USFW Tower guidelines were followed in terms of a short, unlit, unguyed

monopole tower design to minimize adverse impact to birds, however the same guidelines also

require that “Towers should not be sited … in habitat of threatened or endangered species,

key habitats for Birds of Conservation Concern..” Both threatened and endangered bird

species as well as birds of conservation concern have been documented in the bird studies

utilizing the wetlands habitat and flyways surrounding this tower site and passing over the top of

this tower site. The least harmful impact is to deny the SUP and vacate the MDNS.

3. The county erred in not acknowledging the Ron Smith Restoration project as a wildlife


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22



refuge. The Ron Smith Restoration project meets all requirements of the TCC in terms of

qualifying as a publicly owned wildlife refuge. The Ron Smith Wildlife Refuge and surrounding

wetlands, river, and lake habitats have been documented to contain 50 bird species protected by

the Migratory Bird Treaty Act, Bald Eagles protected by the Bald and Golden Eagle Protection

Act, a State listed Endangered and Federally Listed Threatened Bird as well as Birds of

Conservation Concern. Based upon the Supremacy Clause, the protections from harm mandated

by the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act preempt the FCC

TCA. To that end Thurston County is required to consider all aspects of harm caused by the

WCF which include but are not limited to:

a.) physical collision of birds on the tower

b.) disorientation affects of RF emissions from the tower

c.) both thermal and non-thermal RF emission affects from the tower

d.) infertility, cancer, blindness, caused by nesting and perching on top of the tower

The only certain way to prevent these harmful effects is to not permit the tower to be built at the

proposed location which is to deny the SUP and Vacate the MDNS.

4. Based upon federal case law and the scientific principle of prudent avoidance, Thurston

County has the right and duty to protect the health of wildlife, people and the environment from

harmful levels of RF emissions which are documented to occur at levels much lower than

allowed in the TCA. Prudent avoidance means siting towers far enough away from sensitive

wildlife habitats, residential homes, schools etc. so as to minimize as much as possible the levels

of RF emissions that cause harm to wildlife, people, and the environment. Although the applicant

was required by multiple sections of the TCC to provide multiple tower locations, none were


1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22



provided. Since the present tower location cannot be approved without violating the relevant and

preemptive bird protection acts, the SUP must be denied and the MDNS vacated.

5. Federal case law has held that a state agency has a duty under state law to minimize the

impact of the erection of a proposed cell tower. To that end all future applications for new WCF

should be made to strictly prove that:

a.) First, the provider must show that its facility will fill an existing significant gap in

the ability of remote users to access the national telephone network. The

provider’s showing on this issue will thus have to include evidence that the area

the new facility will serve is not already served by another provider.

b.) Second, the provider applicant must also show that the manner in which it

proposes to fill the significant gap in service is the least intrusive on the historical

uses of the site.

c.) Third utilize prudent avoidance in the siting of the tower such that harmful

effects of RF emissions on wildlife, people, and the environment will be

minimized.

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ATTACHMENT 1.

Attachment 1, Official Copy of House Report 104-204

(1)

92–414

104TH CONGRESS REPT. 104–204" !HOUSE OF REPRESENTATIVES1st Session Part 1

COMMUNICATIONS ACT OF 1995

JULY 24, 1995.—Committed to the Committee of the Whole House on the State ofthe Union and ordered to be printed

Mr. BLILEY, from the Committee on Commerce,submitted the following

R E P O R T

together with

ADDITIONAL AND DISSENTING VIEWS

[To accompany H.R. 1555]

[Including cost estimate of the Congressional Budget Office]

The Committee on Commerce, to whom was referred the bill(H.R. 1555) to promote competition and reduce regulation in orderto secure lower prices and higher quality services for Americantelecommunications consumers and encourage the rapid deploy-ment of new telecommunications technologies, having consideredthe same, report favorably thereon with an amendment and rec-ommend that the bill as amended do pass.

CONTENTS

PageThe amendment ....................................................................................................... 2Propose and summary ............................................................................................. 47Background and need .............................................................................................. 48Hearings ................................................................................................................... 055Committee consideration ......................................................................................... 56Roll call votes ........................................................................................................... 56Committee oversight findings ................................................................................. 64Committee on Government Reform and Oversight ............................................... 64Committee cost estimates ....................................................................................... 64Congressional Budget Office estimates .................................................................. 64Inflationary impact statement ................................................................................ 71Section-by-Section Analysis of the Legislation ...................................................... 71Changes in existing law made by the bill, as reported ........................................ 127Additional and dissenting views ............................................... 202, 207, 213, 215, 216

2

The amendment is as follows:Strike out all after the enacting clause and insert in lieu thereof

the following:SECTION 1. SHORT TITLE; REFERENCES; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the ‘‘Communications Act of 1995’’.(b) REFERENCES.—References in this Act to ‘‘the Act’’ are references to the Com-

munications Act of 1934.(c) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

TITLE I—DEVELOPMENT OF COMPETITIVE TELECOMMUNICATIONS MARKETS

Sec. 101. Establishment of part II of title II.

‘‘PART II—DEVELOPMENT OF COMPETITIVE MARKETS

‘‘Sec. 241. Interconnection.‘‘Sec. 242. Equal access and interconnection to the local loop for competing providers.‘‘Sec. 243. Preemption.‘‘Sec. 244. Statements of terms and conditions for access and interconnection.‘‘Sec. 245. Bell operating company entry into interLATA services.‘‘Sec. 246. Competitive safeguards.‘‘Sec. 247. Universal service.‘‘Sec. 248. Pricing flexibility and abolition of rate-of-return regulation.‘‘Sec. 249. Network functionality and accessibility.‘‘Sec. 250. Market entry barriers.‘‘Sec. 251. Illegal changes in subscriber carrier selections.‘‘Sec. 252. Study.‘‘Sec. 253. Territorial exemption.’’.

Sec. 102. Competition in manufacturing, information services, alarm services, and pay phone services.

‘‘PART III—SPECIAL AND TEMPORARY PROVISIONS

‘‘Sec. 271. Manufacturing by Bell operating companies.‘‘Sec. 272. Electronic publishing by Bell operating companies.‘‘Sec. 273. Alarm monitoring and telemessaging services by Bell operating companies.‘‘Sec. 274. Provision of payphone service.’’.

Sec. 103. Forbearance from regulation.‘‘Sec. 230. Forbearance from regulation.’’.

Sec. 104. Privacy of customer information.‘‘Sec. 222. Privacy of customer proprietary network information.’’.

Sec. 105. Pole attachments.Sec. 106. Preemption of franchising authority regulation of telecommunications services.Sec. 107. Facilities siting; radio frequency emission standards.Sec. 108. Mobile service access to long distance carriers.Sec. 109. Freedom from toll fraud.Sec. 110. Report on means of restricting access to unwanted material in interactive telecommunications sys-

tems.Sec. 111. Authorization of appropriations.

TITLE II—CABLE COMMUNICATIONS COMPETITIVENESS

Sec. 201. Cable service provided by telephone companies.

‘‘PART V—VIDEO PROGRAMMING SERVICES PROVIDED BY TELEPHONE COMPANIES

‘‘Sec. 651. Definitions.‘‘Sec. 652. Separate video programming affiliate.‘‘Sec. 653. Establishment of video platform.‘‘Sec. 654. Authority to prohibit cross-subsidization.‘‘Sec. 655. Prohibition on buy outs.‘‘Sec. 656. Applicability of parts I through IV.‘‘Sec. 657. Rural area exemption.’’.

Sec. 202. Competition from cable systems.Sec. 203. Competitive availability of navigation devices.

‘‘Sec. 713. Competitive availability of navigation devices.’’.Sec. 204. Video programming accessibility.Sec. 205. Technical amendments.

TITLE III—BROADCAST COMMUNICATIONS COMPETITIVENESS

Sec. 301. Broadcaster spectrum flexibility.‘‘Sec. 336. Broadcast spectrum flexibility.’’.

Sec. 302. Broadcast ownership.‘‘Sec. 337. Broadcast ownership.’’.

Sec. 303. Foreign investment and ownership.Sec. 304. Term of licenses.Sec. 305. Broadcast license renewal procedures.Sec. 306. Exclusive Federal jurisdiction over direct broadcast satellite service.Sec. 307. Automated ship distress and safety systems.Sec. 308. Restrictions on over-the-air reception devices.Sec. 309. DBS signal security.

TITLE IV—EFFECT ON OTHER LAWS

Sec. 401. Relationship to other laws.Sec. 402. Preemption of local taxation with respect to DBS services.

3

TITLE V—DEFINITIONS

Sec. 501. Definitions.

TITLE VI—SMALL BUSINESS COMPLAINT PROCEDURE

Sec. 601. Complaint procedure.

TITLE I—DEVELOPMENT OF COMPETITIVETELECOMMUNICATIONS MARKETS

SEC. 101. ESTABLISHMENT OF PART II OF TITLE II.

(a) AMENDMENT.—Title II of the Act is amended by inserting after section 229 (47U.S.C. 229) the following new part:

‘‘PART II—DEVELOPMENT OF COMPETITIVE MARKETS

‘‘SEC. 241. INTERCONNECTION.

‘‘The duty of a common carrier under section 201(a) includes the duty to inter-connect with the facilities and equipment of other providers of telecommunicationsservices and information services.‘‘SEC. 242. EQUAL ACCESS AND INTERCONNECTION TO THE LOCAL LOOP FOR COMPETING

PROVIDERS.

‘‘(a) OPENNESS AND ACCESSIBILITY OBLIGATIONS.—The duty under section 201(a)of a local exchange carrier includes the following duties:

‘‘(1) INTERCONNECTION.—The duty to provide, in accordance with subsection(b), equal access to and interconnection with the facilities of the carrier’s net-works to any other carrier or person offering (or seeking to offer) telecommuni-cations services or information services reasonably requesting such equal accessand interconnection, so that such networks are fully interoperable with suchtelecommunications services and information services. For purposes of thisparagraph, a request is not reasonable unless it contains a proposed plan, in-cluding a reasonable schedule, for the implementation of the requested accessor interconnection.

‘‘(2) UNBUNDLING OF NETWORK ELEMENTS.—The duty to offer unbundled serv-ices, elements, features, functions, and capabilities whenever technically fea-sible, at just, reasonable, and nondiscriminatory prices and in accordance withsubsection (b)(4).

‘‘(3) RESALE.—The duty to offer services, elements, features, functions, and ca-pabilities for resale at economically feasible rates to the reseller, recognizingpricing structures for telephone exchange service in the State, and the duty notto prohibit, and not to impose unreasonable or discriminatory conditions or limi-tations on, the resale, on a bundled or unbundled basis, of services, elements,features, functions, and capabilities in conjunction with the furnishing of a tele-communications service or an information service.

‘‘(4) NUMBER PORTABILITY.—The duty to provide, to the extent technically fea-sible, number portability in accordance with requirements prescribed by theCommission.

‘‘(5) DIALING PARITY.—The duty to provide, in accordance with subsection (c),dialing parity to competing providers of telephone exchange service and tele-phone toll service.

‘‘(6) ACCESS TO RIGHTS-OF-WAY.—The duty to afford access to the poles, ducts,conduits, and rights-of-way of such carrier to competing providers of tele-communications services in accordance with section 224(d).

‘‘(7) NETWORK FUNCTIONALITY AND ACCESSIBILITY.—The duty not to installnetwork features, functions, or capabilities that do not comply with any stand-ards established pursuant to section 249.

‘‘(8) GOOD FAITH NEGOTIATION.—The duty to negotiate in good faith, under thesupervision of State commissions, the particular terms and conditions of agree-ments to fulfill the duties described in paragraphs (1) through (7). The othercarrier or person requesting interconnection shall also be obligated to negotiatein good faith the particular terms and conditions of agreements to fulfill the du-ties described in paragraphs (1) through (7).

‘‘(b) INTERCONNECTION, COMPENSATION, AND EQUAL ACCESS.—‘‘(1) INTERCONNECTION.—A local exchange carrier shall provide access to and

interconnection with the facilities of the carrier’s network at any technically fea-sible point within the carrier’s network on just and reasonable terms and condi-

4

tions, to any other carrier or person offering (or seeking to offer) telecommuni-cations services or information services requesting such access.

‘‘(2) INTERCARRIER COMPENSATION BETWEEN FACILITIES-BASED CARRIERS.—‘‘(A) IN GENERAL.—For the purposes of paragraph (1), the terms and con-

ditions for interconnection of the network facilities of a competing providerof telephone exchange service shall not be considered to be just and reason-able unless—

‘‘(i) such terms and conditions provide for the mutual and reciprocalrecovery by each carrier of costs associated with the termination onsuch carrier’s network facilities of calls that originate on the networkfacilities of the other carrier;

‘‘(ii) such terms and conditions determine such costs on the basis ofa reasonable approximation of the additional costs of terminating suchcalls; and

‘‘(iii) the recovery of costs permitted by such terms and conditions arereasonable in relation to the prices for termination of calls that wouldprevail in a competitive market.

‘‘(B) RULES OF CONSTRUCTION.—This paragraph shall not be construed—‘‘(i) to preclude arrangements that afford such mutual recovery of

costs through the offsetting of reciprocal obligations, including arrange-ments that waive mutual recovery (such as bill-and-keep arrange-ments); or

‘‘(ii) to authorize the Commission or any State commission to engagein any rate regulation proceeding to establish with particularity the ad-ditional costs of terminating calls, or to require carriers to maintainrecords with respect to the additional costs of terminating calls.

‘‘(3) EQUAL ACCESS.—A local exchange carrier shall afford, to any other carrieror person offering (or seeking to offer) a telecommunications service or an infor-mation service, reasonable and nondiscriminatory access on an unbundledbasis—

‘‘(A) to databases, signaling systems, billing and collection services, poles,ducts, conduits, and rights-of-way owned or controlled by a local exchangecarrier, or other facilities, functions, or information (including subscribernumbers) integral to the efficient transmission, routing, or other provisionof telephone exchange services or exchange access;

‘‘(B) that is equal in type and quality to the access which the carrier af-fords to itself or to any other person, and is available at nondiscriminatoryprices; and

‘‘(C) that is sufficient to ensure the full interoperability of the equipmentand facilities of the carrier and of the person seeking such access.

‘‘(4) COMMISSION ACTION REQUIRED.—‘‘(A) IN GENERAL.—Within 15 months after the date of enactment of this

part, the Commission shall complete all actions necessary (including any re-consideration) to establish regulations to implement the requirements ofthis section. The Commission shall establish such regulations after con-sultation with the Joint Board established pursuant to section 247.

‘‘(B) COLLOCATION.—Such regulations shall provide for actual collocationof equipment necessary for interconnection for telecommunications servicesat the premises of a local exchange carrier, except that the regulations shallprovide for virtual collocation where the local exchange carrier dem-onstrates that actual collocation is not practical for technical reasons or be-cause of space limitations.

‘‘(C) USER PAYMENT OF COSTS.—Such regulations shall require that thecosts that a carrier incurs in offering access, interconnection, number port-ability, or unbundled services, elements, features, functions, and capabili-ties shall be borne by the users of such access, interconnection, numberportability, or services, elements, features, functions, and capabilities.

‘‘(D) IMPUTED CHARGES TO CARRIER.—Such regulations shall require thecarrier, to the extent it provides a telecommunications service or an infor-mation service that requires access or interconnection to its network facili-ties, to impute such access and interconnection charges to itself.

‘‘(c) NUMBER PORTABILITY AND DIALING PARITY.—‘‘(1) AVAILABILITY.—A local exchange carrier shall ensure that—

‘‘(A) number portability shall be available on request in accordance withsubsection (a)(4); and

‘‘(B) dialing parity shall be available upon request, except that, in thecase of a Bell operating company, such company shall ensure that dialing

5

parity for intraLATA telephone toll service shall be available not later thanthe date such company is authorized to provide interLATA services.

‘‘(2) NUMBER ADMINISTRATION.—The Commission shall designate one or moreimpartial entities to administer telecommunications numbering and to makesuch numbers available on an equitable basis. The Commission shall have ex-clusive jurisdiction over those portions of the North American Numbering Planthat pertain to the United States. Nothing in this paragraph shall preclude theCommission from delegating to State commissions or other entities any portionof such jurisdiction.

‘‘(d) JOINT MARKETING OF RESOLD ELEMENTS.—‘‘(1) RESTRICTION.—Except as provided in paragraph (2), no service, element,

feature, function, or capability that is made available for resale in any State bya Bell operating company may be jointly marketed directly or indirectly withany interLATA telephone toll service until such Bell operating company is au-thorized pursuant to section 245(d) to provide interLATA services in such State.

‘‘(2) EXISTING PROVIDERS.—Paragraph (1) shall not prohibit joint marketing ofservices, elements, features, functions, or capabilities acquired from a Bell oper-ating company by another provider if that provider jointly markets services, ele-ments, features, functions, and capabilities acquired from a Bell operating com-pany anywhere in the telephone service territory of such Bell operating com-pany, or in the telephone service territory of any affiliate of such Bell operatingcompany that provides telephone exchange service, pursuant to any agreement,tariff, or other arrangement entered into or in effect before the date of enact-ment of this part.

‘‘(e) MODIFICATIONS AND WAIVERS.—The Commission may modify or waive the re-quirements of this section for any local exchange carrier (or class or category of suchcarriers) that has, in the aggregate nationwide, fewer than 500,000 access lines in-stalled, to the extent that the Commission determines that compliance with suchrequirements (without such modification) would be unduly economically burden-some, technologically infeasible, or otherwise not in the public interest.

‘‘(f) WAIVER FOR RURAL TELEPHONE COMPANIES.—A State commission may waivethe requirements of this section with respect to any rural telephone company.

‘‘(g) EXEMPTION FOR CERTAIN RURAL TELEPHONE COMPANIES.—Subsections (a)through (d) of this section shall not apply to a carrier that has fewer than 50,000access lines in a local exchange study area, if such carrier does not provide videoprogramming services over its telephone exchange facilities in such study area, ex-cept that a State commission may terminate the exemption under this subsectionif the State commission determines that the termination of such exemption is con-sistent with the public interest, convenience, and necessity.

‘‘(h) AVOIDANCE OF REDUNDANT REGULATIONS.—Nothing in this section shall beconstrued to prohibit the Commission or any State commission from enforcing regu-lations prescribed prior to the date of enactment of this part in fulfilling the require-ments of this section, to the extent that such regulations are consistent with theprovisions of this section.‘‘SEC. 243. PREEMPTION.

‘‘(a) REMOVAL OF BARRIERS TO ENTRY.—Except as provided in subsection (b) ofthis section, no State or local statute, regulation, or other legal requirement shall—

‘‘(1) effectively prohibit any carrier or other person from entering the businessof providing interstate or intrastate telecommunications services or informationservices; or

‘‘(2) effectively prohibit any carrier or other person providing (or seeking toprovide) interstate or intrastate telecommunications services or informationservices from exercising the access and interconnection rights provided underthis part.

‘‘(b) STATE AND LOCAL AUTHORITY.—Nothing in this section shall affect the abilityof State or local officials to impose, on a nondiscriminatory basis, requirements nec-essary to preserve and advance universal service, protect the public safety and wel-fare, ensure the continued quality of telecommunications services, ensure that a pro-vider’s business practices are consistent with consumer protection laws and regula-tions, and ensure just and reasonable rates, provided that such requirements do noteffectively prohibit any carrier or person from providing interstate or intrastate tele-communications services or information services.

‘‘(c) CONSTRUCTION PERMITS.—Subsection (a) shall not be construed to prohibit alocal government from requiring a person or carrier to obtain ordinary and usualconstruction or similar permits for its operations if—

‘‘(1) such permit is required without regard to the nature of the business; and

6

‘‘(2) requiring such permit does not effectively prohibit any person or carrierfrom providing any interstate or intrastate telecommunications service or infor-mation service.

‘‘(d) EXCEPTION.—In the case of commercial mobile services, the provisions of sec-tion 332(c)(3) shall apply in lieu of the provisions of this section.

‘‘(e) PARITY OF FRANCHISE AND OTHER CHARGES.—Notwithstanding section 2(b),no local government may impose or collect any franchise, license, permit, or right-of-way fee or any assessment, rental, or any other charge or equivalent thereof asa condition for operating in the locality or for obtaining access to, occupying, orcrossing public rights-of-way from any provider of telecommunications services thatdistinguishes between or among providers of telecommunications services, includingthe local exchange carrier. For purposes of this subsection, a franchise, license, per-mit, or right-of-way fee or an assessment, rental, or any other charge or equivalentthereof does not include any imposition of general applicability which does not dis-tinguish between or among providers of telecommunications services, or any tax.‘‘SEC. 244. STATEMENTS OF TERMS AND CONDITIONS FOR ACCESS AND INTERCONNECTION.

‘‘(a) IN GENERAL.—Within 18 months after the date of enactment of this part, andfrom time to time thereafter, a local exchange carrier shall prepare and file witha State commission statements of the terms and conditions that such carrier gen-erally offers within that State with respect to the services, elements, features, func-tions, or capabilities provided to comply with the requirements of section 242 andthe regulations thereunder. Any such statement pertaining to the charges for inter-state services, elements, features, functions, or capabilities shall be filed with theCommission.

‘‘(b) REVIEW.—‘‘(1) STATE COMMISSION REVIEW.—A State commission to which a statement is

submitted under subsection (a) shall review such statement in accordance withState law. A State commission may not approve such statement unless suchstatement complies with section 242 and the regulations thereunder. Except asprovided in section 243, nothing in this section shall prohibit a State commis-sion from establishing or enforcing other requirements of State law in its reviewof such statement, including requiring compliance with intrastate telecommuni-cations service quality standards or requirements.

‘‘(2) FCC REVIEW.—The Commission shall review such statements to ensurethat—

‘‘(A) the charges for interstate services, elements, features, functions, orcapabilities are just, reasonable, and nondiscriminatory; and

‘‘(B) the terms and conditions for such interstate services or elementsunbundle any separable services, elements, features, functions, or capabili-ties in accordance with section 242(a)(2) and any regulations thereunder.

‘‘(c) TIME FOR REVIEW.—‘‘(1) SCHEDULE FOR REVIEW.—The Commission and the State commission to

which a statement is submitted shall, not later than 60 days after the date ofsuch submission—

‘‘(A) complete the review of such statement under subsection (b) (includ-ing any reconsideration thereof), unless the submitting carrier agrees to anextension of the period for such review; or

‘‘(B) permit such statement to take effect.‘‘(2) AUTHORITY TO CONTINUE REVIEW.—Paragraph (1) shall not preclude the

Commission or a State commission from continuing to review a statement thathas been permitted to take effect under subparagraph (B) of such paragraph.

‘‘(d) EFFECT OF AGREEMENTS.—Nothing in this section shall prohibit a carrierfrom filing an agreement to provide services, elements, features, functions, or capa-bilities affording access and interconnection as a statement of terms and conditionsthat the carrier generally offers for purposes of this section. An agreement affordingaccess and interconnection shall not be approved under this section unless theagreement contains a plan, including a reasonable schedule, for the implementationof the requested access or interconnection. The approval of a statement under thissection shall not operate to prohibit a carrier from entering into subsequent agree-ments that contain terms and conditions that differ from those contained in a state-ment that has been reviewed and approved under this section, but—

‘‘(1) each such subsequent agreement shall be filed under this section; and‘‘(2) such carrier shall be obligated to offer access to such services, elements,

features, functions, or capabilities to other carriers and persons (including car-riers and persons covered by previously approved statements) requesting suchaccess on terms and conditions that, in relation to the terms and conditions insuch subsequent agreements, are not discriminatory.

7

‘‘(e) SUNSET.—The provisions of this section shall cease to apply in any local ex-change market, defined by geographic area and class or category of service, that theCommission and the State determines has become subject to full and open competi-tion.‘‘SEC. 245. BELL OPERATING COMPANY ENTRY INTO INTERLATA SERVICES.

‘‘(a) VERIFICATION OF ACCESS AND INTERCONNECTION COMPLIANCE.—At any timeafter 18 months after the date of enactment of this part, a Bell operating companymay provide to the Commission verification by such company with respect to oneor more States that such company is in compliance with the requirements of thispart. Such verification shall contain the following:

‘‘(1) CERTIFICATION.—A certification by each State commission of such Stateor States that such carrier has fully implemented the conditions described insubsection (b), except as provided in subsection (d)(2).

‘‘(2) AGREEMENT OR STATEMENT.—For each such State, either of the following:‘‘(A) PRESENCE OF A FACILITIES-BASED COMPETITOR.—An agreement that

has been approved under section 244 specifying the terms and conditionsunder which the Bell operating company is providing access and inter-connection to its network facilities in accordance with section 242 for an un-affiliated competing provider of telephone exchange service that is com-parable in price, features, and scope and that is provided over the competi-tor’s own network facilities to residential and business subscribers.

‘‘(B) FAILURE TO REQUEST ACCESS.—If no such provider has requestedsuch access and interconnection before the date which is 3 months beforethe date the company makes its submission under this subsection, a state-ment of the terms and conditions that the carrier generally offers to providesuch access and interconnection that has been approved or permitted totake effect by the State commission under section 243.

For purposes of subparagraph (B), a Bell operating company shall be considerednot to have received any request for access or interconnection if the State com-mission of such State or States certifies that the only provider or providersmaking such request have (i) failed to bargain in good faith under the super-vision of such State commission pursuant to section 242(a)(8), or (ii) have vio-lated the terms of their agreement by failure to comply, within a reasonable pe-riod of time, with the implementation schedule contained in such agreement.

‘‘(b) CERTIFICATION OF COMPLIANCE WITH PART II.—For the purposes of subsection(a)(1), a Bell operating company shall submit to the Commission a certification bya State commission of compliance with each of the following conditions in any areawhere such company provides local exchange service or exchange access in suchState:

‘‘(1) INTERCONNECTION.—The Bell operating company provides access andinterconnection in accordance with subsections (a)(1) and (b) of section 242 toany other carrier or person offering telecommunications services requestingsuch access and interconnection, and complies with the Commission regulationspursuant to such section concerning such access and interconnection.

‘‘(2) UNBUNDLING OF NETWORK ELEMENTS.—The Bell operating company pro-vides unbundled services, elements, features, functions, and capabilities in ac-cordance with subsection (a)(2) of section 242 and the regulations prescribed bythe Commission pursuant to such section.

‘‘(3) RESALE.—The Bell operating company offers services, elements, features,functions, and capabilities for resale in accordance with section 242(a)(3), andneither the Bell operating company, nor any unit of State or local governmentwithin the State, imposes any restrictions on resale or sharing of telephone ex-change service (or unbundled services, elements, features, or functions of tele-phone exchange service) in violation of section 242(a)(3).

‘‘(4) NUMBER PORTABILITY.—The Bell operating company provides numberportability in compliance with the Commission’s regulations pursuant to sub-sections (a)(4) and (c) of section 242.

‘‘(5) DIALING PARITY.—The Bell operating company provides dialing parity inaccordance with subsections (a)(5) and (c) of section 242, and will, not later thanthe effective date of its authority to commence providing interLATA services,take such actions as are necessary to provide dialing parity for intraLATA tele-phone toll service in accordance with such subsections.

‘‘(6) ACCESS TO CONDUITS AND RIGHTS OF WAY.—The poles, ducts, conduits,and rights of way of such Bell operating company are available to competingproviders of telecommunications services in accordance with the requirementsof sections 242(a)(6) and 224(d).

8

‘‘(7) ELIMINATION OF FRANCHISE LIMITATIONS.—No unit of the State or localgovernment in such State or States enforces any prohibition or limitation in vio-lation of section 243.

‘‘(8) NETWORK FUNCTIONALITY AND ACCESSIBILITY.—The Bell operating com-pany will not install network features, functions, or capabilities that do notcomply with the standards established pursuant to section 249.

‘‘(9) NEGOTIATION OF TERMS AND CONDITIONS.—The Bell operating companyhas negotiated in good faith, under the supervision of the State commission, inaccordance with the requirements of section 242(a)(8) with any other carrier orperson requesting access or interconnection.

‘‘(c) APPLICATION FOR INTERIM INTERLATA AUTHORITY.—‘‘(1) APPLICATION SUBMISSION AND CONTENTS.—At any time after the date of

enactment of this part, and prior to the completion by the Commission of allactions necessary to establish regulations under section 242, a Bell operatingcompany may apply to the Commission for interim authority to provideinterLATA services. Such application shall specify the LATA or LATAs forwhich the company is requesting authority to provide interim interLATA serv-ices. Such application shall contain, with respect to each LATA within a Statefor which authorization is requested, the following:

‘‘(A) PRESENCE OF A FACILITIES-BASED COMPETITOR.—An agreement thatthe State commission has determined complies with section 242 (withoutregard to any regulations thereunder) and that specifies the terms and con-ditions under which the Bell operating company is providing access andinterconnection to its network facilities for an unaffiliated competing pro-vider of telephone exchange service that is comparable in price, features,and scope and that is provided over the competitor’s own network facilitiesto residential and business subscribers.

‘‘(B) CERTIFICATION.—A certification by the State commission of the Statewithin which such LATA is located that such company is in compliancewith State laws, rules, and regulations providing for the implementation ofthe standards described in subsection (b) as of the date of certification, in-cluding certification that such company is offering services, elements, fea-tures, functions, and capabilities for resale at economically feasible rates tothe reseller, recognizing pricing structures for telephone exchange servicein such State.

‘‘(2) STATE TO PARTICIPATE.—The company shall serve a copy of the applica-tion on the relevant State commission within 5 days of filing its application. TheState shall file comments to the Commission on the company’s application with-in 40 days of receiving a copy of the company’s application.

‘‘(3) DEADLINES FOR COMMISSION ACTION.—The Commission shall make a de-termination on such application not more than 90 days after such applicationis filed.

‘‘(4) EXPIRATION OF INTERIM AUTHORITY.—Any interim authority granted pur-suant to this subsection shall cease to be effective 180 days after the completionby the Commission of all actions necessary to establish regulations under sec-tion 242.

‘‘(d) COMMISSION REVIEW.—‘‘(1) REVIEW OF STATE DECISIONS AND CERTIFICATIONS.—The Commission shall

review any verification submitted by a Bell operating company pursuant to sub-section (a). The Commission may require such company to submit such addi-tional information as is necessary to validate any of the items of such verifica-tion.

‘‘(2) DE NOVO REVIEW.—If—‘‘(A) a State commission does not have the jurisdiction or authority to

make the certification required by subsection (b);‘‘(B) the State commission has failed to act within 90 days after the date

a request for such certification is filed with such State commission; or‘‘(C) the State commission has sought to impose a term or condition in

violation of section 243;the local exchange carrier may request the Commission to certify the carrier’scompliance with the conditions specified in subsection (b).

‘‘(3) TIME FOR DECISION; PUBLIC COMMENT.—Unless such Bell operating com-pany consents to a longer period of time, the Commission shall approve, dis-approve, or approve with conditions such verification within 90 days after thedate of its submission. During such 90 days, the Commission shall afford inter-ested persons an opportunity to present information and evidence concerningsuch verification.

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‘‘(4) STANDARD FOR DECISION.—The Commission shall not approve such ver-ification unless the Commission determines that—

‘‘(A) the Bell operating company meets each of the conditions required tobe certified under subsection (b); and

‘‘(B) the agreement or statement submitted under subsection (a)(2) com-plies with the requirements of section 242 and the regulations thereunder.

‘‘(e) ENFORCEMENT OF CONDITIONS.—‘‘(1) COMMISSION AUTHORITY.—If at any time after the approval of a verifica-

tion under subsection (d), the Commission determines that a Bell operatingcompany has ceased to meet any of the conditions required to be certified undersubsection (b), the Commission may, after notice and opportunity for a hear-ing—

‘‘(A) issue an order to such company to correct the deficiency;‘‘(B) impose a penalty on such company pursuant to title V; or‘‘(C) suspend or revoke such approval.

‘‘(2) RECEIPT AND REVIEW OF COMPLAINTS.—The Commission shall establishprocedures for the review of complaints concerning failures by Bell operatingcompanies to meet conditions required to be certified under subsection (b). Un-less the parties otherwise agree, the Commission shall act on such complaintwithin 90 days.

‘‘(3) STATE AUTHORITY.—The authority of the Commission under this sub-section shall not be construed to preempt any State commission from taking ac-tions to enforce the conditions required to be certified under subsection (b).

‘‘(f) AUTHORITY TO PROVIDE INTERLATA SERVICES.—‘‘(1) PROHIBITION.—Except as provided in paragraph (2) and subsections (g)

and (h), a Bell operating company or affiliate thereof may not provideinterLATA services.

‘‘(2) AUTHORITY SUBJECT TO CERTIFICATION.—A Bell operating company or af-filiate thereof may, in any States to which its verification under subsection (a)applies, provide interLATA services—

‘‘(A) during any period after the effective date of the Commission’s ap-proval of such verification pursuant to subsection (d), and

‘‘(B) until the approval of such verification is suspended or revoked by theCommission pursuant to subsection (d).

‘‘(g) EXCEPTION FOR PREVIOUSLY AUTHORIZED ACTIVITIES.—Subsection (f) shall notprohibit a Bell operating company or affiliate from engaging, at any time after thedate of the enactment of this part, in any activity as authorized by an order enteredby the United States District Court for the District of Columbia pursuant to sectionVII or VIII(C) of the Modification of Final Judgment, if—

‘‘(1) such order was entered on or before the date of the enactment of thispart, or

‘‘(2) a request for such authorization was pending before such court on thedate of the enactment of this part.

‘‘(h) EXCEPTIONS FOR INCIDENTAL SERVICES.—Subsection (f) shall not prohibit aBell operating company or affiliate thereof, at any time after the date of the enact-ment of this part, from providing interLATA services for the purpose of—

‘‘(1)(A) providing audio programming, video programming, or other program-ming services to subscribers to such services of such company;

‘‘(B) providing the capability for interaction by such subscribers to select orrespond to such audio programming, video programming, or other programmingservices; or

‘‘(C) providing to distributors audio programming or video programming thatsuch company owns or controls, or is licensed by the copyright owner of suchprogramming (or by an assignee of such owner) to distribute;

‘‘(2) providing a telecommunications service, using the transmission facilitiesof a cable system that is an affiliate of such company, between local access andtransport areas within a cable system franchise area in which such companyis not, on the date of the enactment of this part, a provider of wireline tele-phone exchange service;

‘‘(3) providing commercial mobile services in accordance with section 332(c) ofthis Act and with the regulations prescribed by the Commission pursuant toparagraph (8) of such section;

‘‘(4) providing a service that permits a customer that is located in one localaccess and transport area to retrieve stored information from, or file informa-tion for storage in, information storage facilities of such company that are lo-cated in another local access and transport area;

‘‘(5) providing signaling information used in connection with the provision oftelephone exchange services to a local exchange carrier that, together with any

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affiliated local exchange carriers, has aggregate annual revenues of less than$100,000,000; or

‘‘(6) providing network control signaling information to, and receiving suchsignaling information from, common carriers offering interLATA services at anylocation within the area in which such Bell operating company provides tele-phone exchange services or exchange access.

‘‘(i) INTRALATA TOLL DIALING PARITY.—Neither the Commission nor any Statemay order any Bell operating company to provide dialing parity for intraLATA tele-phone toll service in any State before the date such company is authorized to pro-vide interLATA services in such State pursuant to this section.

‘‘(j) FORBEARANCE.—The Commission may not, pursuant to section 230, forbearfrom applying any provision of this section or any regulation thereunder until atleast 5 years after the date of enactment of this part.

‘‘(k) SUNSET.—The provisions of this section shall cease to apply in any local ex-change market, defined by geographic area and class or category of service, that theCommission and the State determines has become subject to full and open competi-tion.

‘‘(l) DEFINITIONS.—As used in this section—‘‘(1) AUDIO PROGRAMMING.—The term ‘audio programming’ means program-

ming provided by, or generally considered comparable to programming providedby, a radio broadcast station.

‘‘(2) VIDEO PROGRAMMING.—The term ‘video programming’ has the meaningprovided in section 602.

‘‘(3) OTHER PROGRAMMING SERVICES.—The term ‘other programming services’means information (other than audio programming or video programming) thatthe person who offers a video programming service makes available to all sub-scribers generally. For purposes of the preceding sentence, the terms ‘informa-tion’ and ‘makes available to all subscribers generally’ have the same meaningsuch terms have under section 602(13) of this Act.

‘‘SEC. 246. COMPETITIVE SAFEGUARDS.

‘‘(a) IN GENERAL.—In accordance with the requirements of this section and theregulations adopted thereunder, a Bell operating company or any affiliate thereofproviding any interLATA telecommunications or information service, shall do sothrough a subsidiary that is separate from the Bell operating company or any affili-ate thereof that provides telephone exchange service.

‘‘(b) TRANSACTION REQUIREMENTS.—Any transaction between such a subsidiaryand a Bell operating company and any other affiliate of such company shall be con-ducted on an arm’s-length basis, in the same manner as the Bell operating companyconducts busi

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