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Federal Register / Vol. 86, No. 36 / Thursday, February 25, 2021 / Rules and Regulations promulgate regulations to prohibit restrictions that impair a viewers ability to receive video programming services through devices designed for over-theair reception. . . . As the Commission recognized in extending the OTARD
rule to fixed wireless services in the 2000 Competitive Networks First Report and Order, this statutory language reflects Congress recognition that, pursuant to section 303, the Commission has always possessed authority to promulgate rules addressing OTARDs. The Commission has used its section 303 authority to limit State and local regulation of the placement of antennas both before and after section 207 was enacted.
25. Courts have held that the Commissions statutory authority pursuant to Title III is broad. The Commissions authority under section 303 allows it, when necessary to serve the public interest, to allocate spectrum for specific uses, adopt rules governing services that use spectrum as well as rules applicable to antennas and other apparatus, and take action to encourage the larger and more effective use of spectrum. More generally, the Commission may make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of the Act. Fixed wireless service providers offer services using spectrum and are subject to the Commissions rules governing the use of spectrum.7
Evidence in the record shows that fixed wireless service providers seek to broaden their offerings of competitive broadband internet access services but are subject to State, local and private restrictions that increase the costs associated with deploying service and dampen investment. The record shows that modifying the OTARD rule to allow wireless internet service providers to deploy necessary infrastructure more readily will serve the public interest and promote larger and more efficient use of spectrum by increasing siting opportunities for wireless internet 7 For example, among other requirements, fixed wireless providers, are subject to equipment authorization rules that require radio frequency RF devices to operate effectively without causing harmful interference. RF devices must be properly authorized under 47 CFR part 2 prior to being marketed or imported in the United States. Fixed wireless providers that use unlicensed spectrum are subject to Part 15 rules governing unlicensed operation. Part 15 of the Rules allows devices employing low-level RF signals to operate without individual licenses, provided that their operation causes no harmful interference to licensed services and the devices do not generate emissions or field strength levels greater than a specified limit. Fixed wireless providers also are subject to current OTARD requirements.

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service providers, decreasing costs associated with deploying needed infrastructure, and encouraging wireless internet service providers to deploy broadband internet access services in additional areas across the country.8
26. Several commenters argue that the Commission cannot rely on the authority it relied on previously to modify the OTARD rule because the Commissions determinations regarding its authority in the 2000 Competitive Networks First Report and Order were based on an outdated ancillary jurisdiction analysis. The Commission acknowledges that the Commissions Competitive Networks Order was issued prior to the D.C. Circuits decision in Comcast v. FCC, 600 F.3d 642 D.C. Cir.
2010, which rejected the Commissions reliance on ancillary authority in the absence of any express delegation of authority. Nevertheless, the Commissions action here is based on its well recognized broad authority under Title III most specifically section 303.9
27. The Commissions action also is consistent with the requirements imposed upon the Commission in RAY
BAUMS Act. RAY BAUMS Act requires the Commission, in the 8 This exercise of the Commissions Title III
authority will thus further promote the Commissions statutory mission of making available, so far as possible, to all of the people of the United States . . . a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, and encouraging the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans . . . by utilizing, in a manner consistent with the public interest, convenience, and necessity . . . measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment. 47 U.S.C. 151, 1302a. Based on the Commissions findings regarding its authority under Title III of the Act, the Commission rejects National Multifamily Housing Councils argument that the Commission has no statutory authority to revise the OTARD rule.
9 Moreover, the Commissions action is reasonably ancillary to its express authority to manage the radio spectrum and related apparatus.
47 U.S.C. 154i, 303r. Section 4i provides that the Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions. Section 303r authorizes the Commission to make such rules . . . as may be necessary to carry out the provisions of this the Act. As noted above, the Commissions modest expansion of the existing application of the OTARD rules to additional hub and relay antennas is necessary to address the kinds of substantial obstacles to deployment of Title III
services described above. See United States v.
Southwestern Cable Co., 392 U.S. 157, 17278, 180
81 1968. The decision will also provide a levelplaying field for broadband-only fixed wireless providers which lack the regulatory protections in this regard available only to their competitors under sections 253 and 332. See Mobile Communications Corp. of America v. FCC, 77 F.3d 1399 D.C. Cir.
1996.

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Communications Marketplace Report, to assess the state of competition in the communications marketplace, assess the state of deployment of communications capabilities, and to assess whether laws, regulations, regulatory practices or demonstrated marketplace practices pose a barrier to competitive entry into the communications marketplace or to the competitive expansion of existing providers of communications services. It also requires the Commission to describe how it will address the challenges and opportunities in the communications marketplace that were identified through the assessments.
28. The Commission also disagrees with commenters who argue that the Commission lacks authority to modify the OTARD rule because hub and relay antennas are already governed by section 332 of the Act. Commenters such as the Municipal Organizations and Local Governments point out that, in the 2000 Competitive Networks First Report and Order, the Commission found that hub and relay antennas were outside the scope of customer-end equipment covered by the OTARD rule.
The Municipal Organizations argue that because hub and relay antennas are covered under section 332c7, no other provision of the Act may support an action that limits or affects the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of these facilities. To the contrary, the Commission finds that section 332c7
does not bar it from modifying the OTARD rule because it does not apply to antennas used in connection with the broadband-only services many fixed wireless providers offer.
29. Evidence in the record shows that wireless internet service providers use hub and relay antennas to provide services that do not fall within the scope of services covered under section 332c7. With certain exceptions, section 332c7 provides for limited federal preemption of State and local zoning restrictions that prohibit or have the effect of prohibiting the provision of personal wireless service. Personal wireless service is defined under section 332c7 to mean commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services. Unlicensed wireless service in turn, is defined under section 332c7 to mean the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services . . . . Section 253

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