Quiero saber acerca de...

11438

Federal Register / Vol. 86, No. 36 / Thursday, February 25, 2021 / Rules and Regulations
similarly provides for limited federal preemption of state and local statute or regulations that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
30. Many fixed wireless providers offer broadband-only services that are outside the scope of these provisions. In this Report and Order, the Commission takes action to address those hub and relay antennas that are used in connection with the provision of broadband-only services that fall into the gap between its current OTARD
provisions and the protections of sections 332c7 and 253 of the Act. In response to the request from WISPA for clarification about whether the Commissions prior sections 253 and 332 interpretations cover their offering of commingled services, the Commission reiterates what it already decided and the Ninth Circuit Court of Appeals affirmed: The scope of Commission preemption over commingled services is covered by sections 253 and 332 of the Act and its implementing regulations. Expansion of the OTARD rule to cover commingled services thus is unnecessary.
Accordingly, this Report and Order does not address hub or relay antennas that are used for such commingled services, other than to point out that they are covered for preemption purposes under sections 253 and 332 of the Act.
31. The Commission also rejects arguments that revising the OTARD rule as described herein would constitute a taking. The Community Associations Institute CAI argues that a rule allowing commercial communications equipment to be sited on common property without the associations explicit consent is a compelled physical occupation of such property and that such a rule would constitute a taking for which compensation must be made.
The Real Estate Associations contend that while the revised rule would not say so on its face, its practical effect would be to give fixed wireless providers the ability to install and operate equipment without the consent of the owner of the property. They contend that, even though the hub or relay antenna might serve the needs of the end-user customer, it would also have other features that meet only the needs of the third-party service provider and argue that requiring property owners to accept the installation of such equipment would potentially equate to forced acquiescence to subleasing to fixed wireless service providers and would therefore violate the Fifth Amendments prohibition on takings. The Commission
VerDate Sep<11>2014

16:18 Feb 24, 2021

Jkt 253001

disagrees that the revision to the OTARD rule that it adopts in this Report and Order would cause such results.
The OTARD rule does not permit service providers to install hub and relay antennas on common property without a property owners consent. The modification the Commission adopts is narrow and eliminates only the restriction that currently excludes some hub and relay antennas from the scope of the existing OTARD provisions. It does not change any other aspect of the current OTARD rule, including the requirement that, for the OTARD rule to apply, the antenna must be installed on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold interest in the property. A
tenant may allow a wireless service provider to place a hub or relay antenna on property that is within the tenants exclusive use or control where the tenant has a direct or indirect ownership or leasehold interest in the property.
32. In originally extending the OTARD rule to fixed wireless services, the Commission considered and rejected similar arguments that the OTARD rule would constitute a taking and concluded that, there is no constitutional impediment to the Commission forbidding restrictions on the placement of antennas on property within the tenant users exclusive use, where that user has an interest in the property. The Commission reiterated its explanation from the OTARD Second Report and Order that the OTARD rule did not effect a taking of the premises owners property within the meaning of the Fifth Amendment because by leasing his or her property to a tenant, the property owner voluntarily and temporarily relinquishes the rights to possess and use the property and retains the right to dispose of the property. In Building Owners and Managers Assn Inter. v. FCC, 254 F.3d 89 D.C. Cir.
2001, the D.C. Circuit upheld the Commissions extension of OTARD
protection to the placement of antennas on leased premises, rejecting the claim that the action effected a per se taking because it enlarges the tenants rights beyond the contractual provisions of the lease, thereby stripping landowners of property rights that they rightfully reserved. . . . The court held that the landlord affected by the amended OTARD rule will have voluntarily ceded control of an interest in his or her property to a tenant and having done so thereby submits to the Commissions rightful regulation of a term of that occupation. Ibid The
PO 00000

Frm 00052

Fmt 4700

Sfmt 4700

Commission is not convinced that its decision creates a Fifth Amendment takings issue, or that the broad categories of covered activities cited in BOMA should be restricted, simply because installation of the hub and relay equipment might result in the end user receiving money or other compensation in exchange for installation of the equipment on the premises. Consistent with and for the reasons outlined in the Commissions previous determinations, it concludes that revising the OTARD
rule as described herein does not constitute a taking. A taking does not occur in such cases because, by leasing property to the tenant, the property owner has voluntarily and temporarily relinquished the right to possess and use the property and has instead given those rights to the tenant.
33. The Commission also rejects arguments premised on the generalized concerns about the Commissions RF
safety limits and that incrementally revising the OTARD rule would somehow violate peoples right to bodily autonomy or their property-based right to exclude wireless radiation emitted by third parties from their home or would violate the Americans with Disabilities Act or the Fair Housing Act by imposing radiation on individuals in their homes. Revising the OTARD rule does not change the applicability of the Commissions radio frequency exposure requirements, and fixed wireless providers must ensure that their equipment remains within the applicable exposure limits. What is more, in 2019, the Commission declined to initiate a rulemaking to revise its RF
emission exposure limits. The Commission therefore rejects certain commenters concerns that the OTARD
rule revisions will generally lead to unsafe RF exposure levels.
34. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended RFA, requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.
Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis FRFA concerning the possible impact of the rule changes contained in this Report and Order on small entities.
35. Paperwork Reduction Act. This document does not contain an information collection subject to the Paperwork Reduction Act of 1995
PRA, Public Law 10413. Therefore, it does not contain any new or modified information collection burden for
E:FRFM25FER1.SGM

25FER1