Before the



Washington, D.C.  20230



In the Matter of                                                )


Request for Comments                         )                        Docket No. 011109273-1273-01

Deployment of Broadband Networks                        )

and Advanced Telecommunications                        )






The Cellular Telecommunications & Internet Association (“CTIA”)[1]/ respectfully submits these comments in response to NTIA’s request for comment on broadband deployment in the United States.[2]/  There are two major barriers thwarting the wireless industry’s efforts to deploy broadband services: an urgent need for additional spectrum, and unnecessary regulatory restrictions.  To meet the growing demand for advanced mobile services, it is paramount that adequate spectrum be made available to CMRS providers and that the government eliminate unnecessary regulations that limit the efficiency of currently available spectrum.

While CTIA finds much to commend in the government’s new band plan proposal, it is crucial that the Federal Government continue to consider other bands that have been proposed for advanced wireless services.  CTIA’s proposed band plan will: 1) facilitate globalized roaming since it matches those bands currently being by countries with the DCS 1800 band plan; 2) provide up to 120 MHz toward the 200 MHz of additional spectrum necessary to support short-term advanced mobile services needs; and 3) provide some certainty that the spectrum will be made available in the near term since it has been identified as available for reallocation.  Any new authorization of spectrum should be assigned by competitive bidding to award spectrum equitably.  Finally, CTIA urges NTIA to complete its band review as expeditiously as possible since the mobile wireless industry’s demand for spectrum continues to rapidly increase.

In addition to making additional spectrum available for advanced wireless services, NTIA and the FCC must remove unnecessary regulations that limit the efficiency of currently available spectrum, including:  1) the spectrum cap must be eliminated immediately, in its entirety; and 2) more flexible use of spectrum should be allowed.  While the policies adopted for broadband services should be technologically neutral, there may be differences in particular broadband network architectures that warrant different regulatory treatment.  Another barrier to the deployment of broadband services is the imposition of discriminatory or excessive taxes and fees on CMRS carriers and other broadband service providers. 

Finally, ineffective and arbitrary implementation of Federal procedures at the local, state, regional, and district levels significantly impede timely and reasonable access to Federal and historic properties.  This decentralized, provincial approach towards implementation may undermine a well-balanced regulatory framework.  Among other impediments, wireless telecommunications service providers face significant delays in the siting process with State Historic Preservation Officers responsible for implementing the National Historic Preservation Act.

I.            Primary Broadband Policy Considerations

NTIA properly asks what should be the primary considerations in formulating broadband policy for the country.[3]/  Competition is the Nation’s preferred means of delivering innovative services to the public, so the primary consideration must be to formulate policies that foster competition in the delivery of broadband services.  CTIA believes that the wireless telecommunications industry will play a prominent role in the delivery of broadband services to American consumers.  In order to promote the competitive provision of broadband services by all sectors of the communications industry, it is of critical importance that all broadband policies should be technology-neutral.  Technology-neutral policies will foster the development of competition in the provision of broadband services by encouraging the greatest number of participants to enter the broadband market.  And competition, rather than regulatory fiat, best promotes the introduction, growth, and broad deployment of innovative new technologies and services. 

II.            Definitions

NTIA asks how broadband services should be defined.[4]/  In the mobile context, “broadband” services are more commonly referred to as advanced mobile wireless services.  While these services are expected to provide data transmission rates of 144 Kbps-2 Mbps, there is no single definition for advanced mobile services,[5] nor should NTIA endeavor to create one.  The term “advanced mobile services” encompasses still developing concepts for services and technologies that reflect the convergence of the Internet and mobile networks, and the needs of many consumers to access information efficiently from anywhere in the world.  In light of the advanced capabilities they will provide to subscribers, however, they should be included in NTIA’s definition of broadband services. 

III.            Deployment of Broadband Services

NTIA seeks information on the current status of both the supply of and the demand for broadband services in the United States.[6]/  Advanced wireless services will be a critical element of the nation’s broadband telecommunications infrastructure.  CMRS carriers will offer true, facilities-based competition to other providers of broadband services, providing the redundant networks that have proven to be so vital for our nation’s security.  As the Administrator of the NTIA recently noted, “[f]acilities-based competition has always been a desired means for achieving a robustly competitive market.  Obviously, there should be reasonable opportunities for resale competition as well.  But as we saw on September 11th, there are network reliability and security advantages to having a diversity of facilities-based competitors.”[7]/ 

The wireless industry has been using narrowband frequencies for some time to provide a multitude of data applications.  Terrestrial wireless carriers in the United States are aggressively deploying new technologies that allow high-speed mobile data capabilities, and are constantly increasing their range of data offerings.[8]/  Over the last five years, wireless operators in the U.S. have reported another $50 billion in capital investment.[9]  While this capital investment is not limited to supporting data services, the wireless industry’s investment in new technology enables more applications (including data applications) and accommodates both more users and greater demand for services by such users.  Wireless carriers are now offering and deploying a variety of technologies to support more advanced mobile wireless applications.  For example, AT&T Wireless offers data and voice service on GSM/GPRS networks in 15 cities, and reportedly invested $1 billion in its GSM/GPRS over-build in 2001 alone, with billions more to be invested in 2002-2003.  Sprint reportedly plans nationwide roll-out of 1xRTT by mid-2002, with 15 1xRTT devices to be offered on the market.  Cingular Wireless has also announced plans, and equipment contracts, for the deployment of GSM/GPRS in its markets over the next three years, involving an investment of almost $3 billion.[10]/  As has been noted elsewhere, analysts believe that advanced mobile wireless services and their enabling technologies provide both increased voice capacity and faster data rates.[11]

Demand for these services is expected to be substantial.  Over the past several years, the mobile wireless industry has experienced rapid growth, with the number of wireless users more than tripling since 1996 to the current level of over 127 million subscribers.[12]/  Consumer demand for advanced wireless services is expected to experience a similar pattern of rapid growth, and to spur new developments in voice, data, and interactive services as well as improved technologies to provide these services.  According to the Strategis Group, mobile data subscribers in the United States are expected to grow from 10.4 million in 2001 to 78.7 million in 2005 and 171.9 million in 2007.[13]/  In the near-term, some financial analysts have estimated that 60 percent of the wireless subscriber base (the equivalent of 40 percent of the U.S. population) would be data users by 2005.  Even more conservative estimates of data penetration still justify immediate action to meet the emerging demand for wireless data.  For example, the projections which helped drive the identification of additional spectrum at the WRC-2000 estimated data penetration of 40 percent by 2010.[14]  Overall estimates of wireless demand in the U.S. have projected wireless subscribers will use between 936 billion to 1.3 trillion minutes of use by the end of 2005.[15]  Reported annual wireless usage (in 2000) has already amounted to 259 billion minutes.[16] 

IV.            Barriers to Deployment of Broadband Services by Wireless Carriers

NTIA seeks comment on the problems that companies have experienced in deploying broadband services via wireless technology, and any regulatory changes that would facilitate growth of such services.[17]/  In particular, NTIA asks whether available spectrum is adequate, and what additional spectrum allocations, if any, are needed.[18]/  The lack of adequate spectrum is the single most important factor limiting the growth and development of broadband wireless services.  If the promise of advanced wireless services is to be realized in the United States, CMRS providers must have access to the necessary spectrum resources.  NTIA should take a leadership role in ensuring that unnecessary regulatory restrictions on CMRS spectrum that prevent it from being put to its highest and best use are lifted. 

A.            Allocate Additional Spectrum for Advanced Wireless Services

First, adequate spectrum suitable for advanced wireless services must be made available.  NTIA recently announced a new plan to identify and assess spectrum for advanced wireless services that will focus on the potential use of the 1710-1770 and 2110-2170 MHz bands.[19]/  Pairing 1710-1770 MHz with 2110-2170 MHz offers significant benefits.  In particular, this approach promotes global harmonization of advanced wireless services because duplex directions for 1710-1770 MHz would match those currently being used by countries with the DCS 1800 band plan.  In addition, the duplex direction for the spectrum at 2110-2170 MHz would match the direction of the spectrum currently being auctioned or otherwise licensed for IMT-2000 or third generation (“3G”) wireless services in Europe.  Global harmonization provides lower research and development and production costs for handsets and network infrastructure, which in turn ensures less expensive handsets and services for consumers.  Global harmonization also will speed the delivery of new products and services to market, facilitate international roaming, and ensure the faster growth of the United States wireless market. 

This band plan also would provide up to 120 MHz toward the 200 MHz of additional spectrum that the International Telecommunication Union (“ITU”), with United States government input and support, has estimated will be required in the United States to support advanced mobile services through 2010.  In this regard, this pairing is far superior to the FCC’s earlier proposal to pair the 1710-1755 MHz band with the 2110-2150/2160-2165 MHz band, which did not provide adequate spectrum to allow multiple competitors to bid to provide advanced mobile services. 

Finally, the pairing of 1710-1770 with 2110-2170 MHz offers a better prospect of being cleared over the next several years than other options suggested in this proceeding, and hence provides some certainty that the spectrum will be made available in the near term to help spectrum-constrained carriers offer advanced wireless services.  During the last year, both private industry and NTIA itself have carefully examined the 1710-1770 MHz band, which is currently occupied by Federal Government users.  These studies have provided various options under which the current Government users might share or relocate their operations, without sacrificing operational capabilities, for this entire band, including the “protection areas” in the 1710-1755 MHz band.[20]/  The 2110-2150 MHz band has already been identified as available for reallocation, although new entrants will be required to relocate incumbent users.  The 2150-2160 MHz band can and should be reallocated to advanced wireless services, and the incumbents relocated to another band, while the 2165-2170 MHz band can be reallocated readily from mobile satellite services as it has not been assigned to any MSS applicants.

To the extent the Federal Government allocates MSS spectrum to advanced wireless services, it should be assigned by competitive bidding, as required by Section 309(j)(1).[21]/  The mandatory use of auctions ensures that licenses are assigned to those who place the highest value on the use of the spectrum.[22]/  Since Section 309(j) was added to the Communications Act in 1993,[23]/ the Commission has consistently concluded that domestic commercial spectrum should be auctioned.[24]/  This policy was confirmed by the 1997 amendments to Section 309(j).[25]/

Using competitive bidding to award these new authorizations would also ensure that they are assigned in the same manner as other similarly-situated authorizations to provide terrestrial service have been granted.  It would not be equitable to award free spectrum to one entrant in a competitive market when others have paid billions for the same rights.  Moreover, for competitive bidding to work efficiently, all interested parties must be eligible to bid for terrestrial authorizations in the MSS band.  Distorting the auction process by limiting the eligible bidders would preclude the public from realizing the full value of this resource.  If eligibility to participate is limited to the original MSS system operators, other parties that may place a higher value on the spectrum will be precluded from participating, potentially depriving the public of the most innovative, efficient uses of this scarce resource. 

According to NTIA’s statement, the Federal Government plans to complete its assessment of spectrum for advanced wireless services by late Spring 2002.[26]/  CTIA urges NTIA to complete its review of the 1710-1770 band, including the protected sites, as quickly as possible.  All parties would benefit from the certainty of knowing whether and when this spectrum could be made available.  The mobile wireless industry continues to have an urgent need for additional spectrum, and consumers will directly benefit from a speedy process.  CTIA commends the Federal Government on the extensive effort it has devoted to this issue thus far, and the mobile wireless industry is prepared to do its part to help continue this momentum in any way it can.

While CTIA finds much to commend in the government’s new band plan proposal, it is vital for the Federal Government to continue to consider other bands that have been proposed for advanced wireless services, perhaps over a longer time frame.  For example, the FCC previously explored the possibility of introducing new advanced mobile and fixed services in the 1710-1850 MHz band.[27]/  Over time, this band also offers the benefits of global harmonization with the commercial mobile services being provided today in most countries around the world in the DCS 1800 MHz band.  Indeed, given the demand for wireless and advanced wireless services, no band identified for advanced wireless services by the ITU should be removed permanently from consideration in this country.  NTIA and other federal agencies will need to continually reassess the need for advanced mobile services over time, and should recognize that in the future it may be necessary to relocate certain spectrum bands that are not being efficiently utilized. 

B.            Remove Unnecessary Regulations that Limit the Efficiency of Currently Available Spectrum


NTIA, in coordination with the FCC, needs to make additional spectrum available for advanced wireless services, but it also should support policies that will ensure that currently available spectrum is put to its highest and best use.  By lifting unnecessary regulatory restrictions on CMRS spectrum, the federal government can remove obstacles that prevent existing spectrum from being for advanced wireless services.

First, as NTIA is already well aware, the current spectrum cap must be eliminated immediately, in its entirety.[28]/  In today’s competitive CMRS market, “rules such as these that draw arbitrary lines in the name of ensuring competition are simply not needed.”[29]/  While the FCC has announced that it will eliminate the CMRS spectrum cap effective January 1, 2003, it will retain a cap of 55 MHz in all areas during the transition period.[30]/  The decision to eliminate the spectrum cap is an important step toward alleviating the current spectrum shortage, but the decision to maintain a 55 MHz cap in the interim delays the benefits of that decision for over a year.  As Assistant Secretary Nancy Victory has already made clear, “January 1st, 2003 can’t come soon enough for America’s 123 million wireless consumers.”[31]/  NTIA also should continue to advocate for a deregulatory approach to wireless mergers in the post-spectrum cap world.[32]/  CTIA commends NTIA for its past leadership on this issue, and urges the Administration to continue to advocate for the immediate removal of the cap in its entirety in order to spur the deployment of advanced wireless services.

Removing regulatory barriers to the leasing of spectrum rights is also a significant step in allowing more flexible use of spectrum, and thereby ensuring that existing allocations of CMRS spectrum are put to their highest and best use.  Under the FCC’s existing rules, certain spectrum leasing arrangements are precluded, and others require costly and time consuming FCC approvals.[33]/  These rules prevent carriers from easily transferring or leasing spectrum to other carriers who value the spectrum more highly, including carriers that intend to use the spectrum for advanced wireless services.  Like the spectrum cap, the FCC’s current spectrum leasing rules prevent market forces from ensuring that existing CMRS spectrum allocations are used efficiently and hinder the deployment of advanced wireless services.  NTIA should advocate for the modification of the existing spectrum leasing rules to permit wireless licensees to participate in voluntary “secondary market” arrangements, which will encourage carriers who currently are not fully utilizing their spectrum to lease unused resources to third parties in need of additional spectrum to deploy new services, including advanced wireless services. 

C.            CMRS Carriers Must Receive Eligible Telecommunications Carrier (ETC) Status for Purposes of Universal Service Support


The principal factor in predicting whether advanced services will be available to all consumers in rural areas is the availability of network facilities capable of supporting high-speed data services.  Until recently, financial support in the form of universal service was made available only to the incumbent local exchange carrier with the hope that this carrier would provide basic and advanced communications services that consumers want.  Granting CMRS carriers Eligible Telecommunications Carrier (ETC) status for purposes of universal service support is critically important if wireless carriers are to provide affordable telecommunications services in many rural, high-cost areas in competition with incumbent local exchange carriers[34].

Wireless service may hold a key to the availability of and the deployment of advanced services in rural America.  Currently, advanced telecommunications services are available to only a small segment of the population in rural areas.  Advances in wireline technology will close the "digital divide" with respect to some consumers, but rural wireline consumers are likely to remain on the wrong side of the "digital divide."  At one time, there was little promise for these consumers.  Advances in wireless technology now promise rural consumers access to advanced telecommunications services for the first time.

To encourage the more rapid deployment of broadband services in rural America, NTIA should encourage reform of the current universal service support mechanisms so that competitive carriers and incumbent carriers have access to the same levels of support.  This means that implicit support mechanisms, such as access charges, must be replaced with explicit, portable universal service funding mechanisms that provide support to carriers providing service to rural, high-cost areas[35].  Second, both the FCC and state commissions must expeditiously grant competitive carriers ETC status and prevent incumbent carriers from delaying and preventing competitive entry into the local market.  Since passage of the Act, incumbent local exchange carriers have engaged in anti-competitive tactics aimed at delaying or preventing wireless carriers from entering the local market.  One incumbent local exchange carrier in North Dakota went so far as to deny a wireless carrier interconnection to the public switched telephone network.  A court ultimately ordered the incumbent telephone company to restore the service.

Competition holds the key to the deployment of advanced telecommunications services in rural areas.  Government needs to ensure a level playing field through the establishment of a competitive universal service system, a comprehensive spectrum allocation policy, the elimination of limitations on spectrum aggregation, and enforcement action against anti-competitive behavior by incumbent carriers.

Finally, consumers will be denied the substantial public interest that will result from the deployment of advanced wireless service if such services are subjected to burdensome unnecessary regulation. 

V.            Regulatory Parity

NTIA asks whether it would be appropriate to establish a single regulatory regime for all broadband services, or whether there are differences in particular broadband network architectures that warrant different regulatory treatment.[36]/  While policies designed to stimulate broadband deployment should be technologically neutral, NTIA should not attempt to paint all providers of broadband services with the same regulatory brush.  Asymmetrical regulation is appropriate where service providers are not similarly situated, for example where they possess differing levels of market power.  The CMRS marketplace is vibrantly competitive,[37]/ and CMRS providers therefore lack the sustained market power or control over essential bottleneck facilities that frequently justify regulation in other contexts.[38]/  Before any decision is made to regulate broadband service providers across the board, NTIA should separately consider, on the merits, whether to extend such regulation to providers of advanced wireless services.  The Federal Government has consistently relied upon competitive market forces, rather than government mandates, to guide the growth and development of the competitive mobile wireless industry.  This same deregulatory approach should be followed in the broadband context. 

VI.       Local Issues Affecting Broadband Deployment

            NTIA also seeks comment on whether there are local issues affecting broadband deployment that should be addressed by federal policies.[39]/  One of the most significant barriers to the deployment of broadband services is the imposition of discriminatory or excessive taxes and fees on CMRS carriers and other broadband service providers.  In 1996, CTIA filed a petition asking the FCC to preempt state and local imposition of discriminatory or excessive taxes and assessments on CMRS providers.[40]/  Three years later, the FCC denied that petition, but solicited information on the nature and prevalence of unreasonable or discriminatory tax burdens on competitive telecommunications service providers.[41]/ 

The evidence submitted in response to the FCC’s request substantiated CTIA’s earlier claims that unreasonable and discriminatory taxes and fees were being imposed on state and local governments on CMRS providers.  Many state and local tax administrators have aggressively targeted not only wireless telecommunications services and providers, but also other segments of the telecommunications industry as a substantial source of obtaining additional tax revenues.  While localities generally are prohibited under state law from directly assessing taxes unless the state has directly conferred upon them the power to do so, many localities are circumventing this prohibition by imposing “fees” as opposed to taxes, often characterized as franchise fees, rights-of-way fees, or other access fees.  As a result of these multiple fees, competitive telecommunications providers, including wireless carriers, have increasingly encountered more of taxation, and at higher rates, and far greater compliance obligations than most non-telecommunications businesses.  This inequitable and burdensome tax treatment was documented by the Telecommunications Tax Task Force of the Committee on State Taxation (“COST”) in a 1999 50 state study.

Among the most significant findings of the COST study are that the total tax rate in California for business generally is 8.62 percent, while telecommunications providers are taxed almost twice as much, 15.99 percent.[42]/  COST also found that a telecommunications provider with a nationwide footprint offering a full array of telecommunications services must file approximately 55,748 tax returns each year.[43]/  COST agrees with CTIA that such discriminatory and excessive taxes on telecommunications services will thwart the rollout of broadband services by all providers, noting that “a simple and fairer system of State and local taxation for telecommunications companies is essential for the development of this medium and the growth of electronic commerce.”[44]/  CTIA urges NTIA to take appropriate action to ensure that the inefficiencies and inequities of the current state and local tax structure do not delay the deployment of advanced wireless facilities and services.

VII.            Impediments to Access to Federal Lands and Buildings

            NTIA asks whether there are impediments to federal lands and buildings that thwart broadband deployment, and whether changes are necessary to give service providers greater access to federal property.[45]/  While CTIA and several Federal agencies have worked together cooperatively to address issues related to the siting of wireless of facilities on or near Federal and historic properties,[46] there are far too many Federal agencies that impede access to or near Federal and historic properties in a timely and reasonable manner.  Six years after the passage of the Telecommunications Act, many Federal agencies are still unable respond effectively and quickly to market and government demands for the swift deployment of broadband and advanced wireless services.  While some Federal agencies have attempted to streamline their rules and procedures governing the issuance of permits for communications rights-of-way and have established time schedules for timely review of applications,[47] regrettably, these agencies are the minority.  Furthermore, the ineffective and arbitrary implementation of these purportedly streamlined procedures and time schedules by the Federal agency officials at the local, state, regional and district levels have significantly impeded timely and reasonable access to Federal and historic properties.  Too often, agency officials implement and interpret the Federal agency’s streamlined procedures and time schedules as they deem appropriate.  Unless successfully challenged, their interpretations and implementation efforts are laden with subjective, provincial rules and procedures that often vary within the same district office or from one agency field official to another.[48]  

Such varied interpretations and implementation result in inconsistent determinations and create significant uncertainty for wireless telecommunications companies attempting to site on or near Federal and historic properties.[49]  Consequently, this type of decentralized approach to implementation generally has a dilatory effect which contravenes the goals and policies that the Federal agency attempted to achieve by streamlining its processes to facilitate access.  Rather than using a consistent and reliable approach to addressing siting issues on Federal and historic properties, telecommunications companies with national and multi-regional footprints must navigate these issues with Federal agencies field offices in a piecemeal manner.  Such an approach is inefficient, time-consuming and costly thereby significantly impeding deployment of both traditional and advanced wireless services to nearby communities. 

This decentralized, provincial approach towards implementation has the very real potential to undermine the efforts of those Federal agencies that have worked with industry to develop a well-balanced regulatory framework that addresses both the needs of the public who rely on dependable and ubiquitous wireless telecommunications services and the public’s desire to conserve and properly manage the U.S. natural, historic, and cultural resources.[50] 

Similarly, the Advisory Council on Historic Preservation’s rules implementing Section 106 of the NHPA and the unfettered authority and discretion delegated to State Historic Preservation Officers also impede the deployment of advanced wireless services and technology.  While CTIA and its member companies have repeatedly asked and actively pursued reasonable and timely alternatives to the Section 106 regulatory quagmire,[51] the Federal agencies implementing the NHPA continue to drag their feet with respect to implementing a streamlined process that address siting of wireless facilities on or near historic properties in a timely and reasonable manner. 

There are several major issues associated with the FCC’s and the ACHP’s policies and procedures that significantly hinder the construction and buildout of the wireless infrastructure, which is critical and necessary for the deployment of advanced wireless services.  While the Section 106 historic review process require applicants to consult with State Historic Preservations Officers (“SHPOs”) in determining whether a siting project may have a significant adverse impact on the historic property, there are no limitation on the SHPOs’ review authority, nor any standards upon which SHPOs must base their objections.  As a result, there are no means of reviewing the reasonableness of SHPO objections.  SHPOs are free to pick any point on the map, between one inch and 100 miles, to object to a proposed siting project.  The fact that SHPOs review lacks adequate standards is amply demonstrated in the following representative examples, which are far from exclusive: 

·        “Rural Historic Districts”.  Wireless providers have been confronted with Mid-Atlantic SHPO claims that “rural historic districts” exist in the area of a proposed tower site.  These sites are frequently not on the National Register or on state records prior to the initiation of the Section 106 consultation process.  SHPOs frequently do not define the boundaries of these sites and further assert that such districts can be based collectively on historic features that individually would not be eligible for the National Register.

·        Documentation and Research of Historic Features as “Mitigation”.  SHPOs in the Mid-Atlantic have required telecom providers to perform detailed studies and documentation of alleged historic features within the “area of potential effect” as “mitigation” of alleged adverse effects.  However, these studies do not reduce or ameliorate the alleged effects.  The cost of this work can be quite substantial.

·        Inconsistent SHPO Review and Vague/Unsupported SHPO Conclusions.  Whether or not a tower site causes an effect or an adverse effect on a historic property is in practice entirely subjective and virtually without standard.  Providers report different findings on the same proposal by separate consulting entities (e.g., the SHPO and the National Park Service) and different findings on the same proposal by different individuals reviewing on behalf of the SHPO.  A SHPO in the Southwest simply reported its conclusion that a tower proposal would have an adverse effect on one specific property and numerous other unspecified properties in a single sentence (essentially repeated in three separate letters) that makes no effort to explain the basis for such a conclusion, despite the fact that the licensee had provided substantial information tending to demonstrate the contrary.  Similarly, a wireless provider in the Northeast submitted photo-simulations of the proposed tower from the vantage point of the identifiable historic properties only to have the SHPO assert that the immediate area of the tower was eligible for inclusion in the Register without any demonstration of that assertion.  The wireless provider eventually withdrew its proposal rather than continue the protracted process.

·        SHPO Moving Targets.  Precisely what a SHPO believes will be sufficient at any stage of the process frequently presents a moving target that occasions much delay, including successive 30-day response periods as the precise requirements that the SHPO believes are necessary are revealed seriatim.  Examples:  A wireless provider was requested to perform a “balloon test”, which it did (with photo documentation), only to be informed afterward that the SHPO wanted to provide input on how the test was to be conducted (lift on a boom) and to attend the test.  In the Northeast a wireless provider initiated the Section 106 process in mid-April with preliminary sketches; the SHPO replied in mid-May requesting current plans and photo-simulations.  These were filed in late May; the SHPO replied in late June, still unable to determine an effect and requesting clarification as to why the more detailed plans differed from the preliminary plans.  In the same response, the SHPO for the first time sought to include the local historical commission in the process.  The process has taken 3 months and is moving into its 4th  month with no sign of resolution.

·        SHPO Actions Harmful to Preservation.  In at least one instance, a SHPO in the Northeast issued an adverse effect finding on a proposal by a wireless carrier to locate an antenna inside a church steeple (the antenna itself would not be visible).  The wireless carrier proposes to replace the existing steeple with a more structurally sound steeple that requires less maintenance and can better withstand harsh environmental conditions.  The congregation of the church determined that the proposal would preserve, not harm, the historic nature of the church by improving the structural and environmental viability of the steeple (while improving its appearance) and providing a desperately needed source of funding for other maintenance of the building that have been repeatedly deferred for lack of funding.  The SHPO issued its finding without consulting the church, thereby essentially ignoring the exhaustive research and deliberation of the church as to this matter, including its impact on the preservation of the historic nature of the building, which the congregation determined to be positive.  The church has stated that the delay occasioned by the SHPO’s finding threatens not only the steeple project but also the continued preservation of the church as a whole. 

·        Treatment of Major Roadways as Historic Sites.  Relying on an unpublished “cultural resource study sponsored by the New Jersey Highway Authority,” the New Jersey SHPO determined that the Garden State Parkway is eligible for listing on the National Register of Historic Places, and found that a proposed wireless tower would cause an adverse effect on that historic property.  This has had the practical effect of blocking the project.  The SHPO’s analysis omitted the fact that for many years there have been numerous communication towers placed along the Garden State Parkway and many of those towers are owned by the New Jersey Highway Authority itself.  Moreover, the SHPO’s adverse effect finding fails to account for the nature of the existing developed environment. 

These few examples demonstrate the failings of the FCC’s and ACHP’s policies and procedures for Section 106 review.  While the Court in Cellular Telecomm. & Internet Ass’n  v. Slater, et al. determined that the Federal agency, the FCC, has the authority to promulgate substantive rules under the NHPA, the aforementioned examples demonstrate that SHPOs have been effectively empowered to make final decisions and have usurped the FCC’s authority.

Another major impediment is the FCC’s current regulatory process with respect to the filing of Environmental Assessments.  The FCC currently requires licensees to file an Environmental Assessment when:  1) the SHPO has determined "no adverse effect" to the historic property; 2) there is a finding of "adverse impact" and the SHPO and licensee have entered into a Memorandum of Agreement to mitigate such impact; or 3) licensees attempt to co-locate on a structure already designated as a "disturbed" area.  After the licensee goes through the formality of filing an EA under these circumstances, the FCC takes an additional 60 to 90 days to process the EA.  Thus, construction is unnecessarily delayed for 60 to 90 additional days, which is a considerable period of time in a competitive wireless market.  The FCC must find ways to streamline this process by eliminating duplicative filings and rules that are no longer in the public interest. 

Too often, wireless carriers encounter significant delays in the siting process because the eligibility of a historic property is undetermined or has been pending for a considerable period of time.  While the SHPO is responsible for maintaining and ensuring that the state’s register of historic properties is current, wireless carriers often encounter instances in which a state register is outdated or missing significant information concerning eligible historic property. It is very difficult for carriers to assess the impact of a proposed site when the information concerning the eligibility of a historic property is uncertain or the information concerning a specific property is outdated or incomplete.

This issue can be addressed by providing incentives to SHPOs to address the eligibility of a historic property in a timely and reliable manner.  Thus, there should be a streamlined regulatory process whereby there is a rebuttable presumption that a carrier who makes reasonable efforts to determine whether the siting of a wireless facility on or near a historic property has a significant adverse effect has met its obligations under Section 106, unless the SHPO has previously made a formal determination concerning the eligibility of a historic property and that determination is duly recorded in the appropriate public files.  The proposed Programmatic Agreement should provide SHPOs with a reasonable period of time to make a formal determination.  Reasonableness should be determined in consideration of the carrier’s deployment schedule, due process, and most important, the needs of the public who rely on dependable and ubiquitous wireless telecommunications services and the public's desire for the preservation, conservation and management of the natural, historic and cultural resources.

While the wireless industry has convinced the FCC, ACHP and the National Council of State Historic Preservation Officers to address these impediments in a Programmatic Agreement, there is significant concern that the Federal agencies will not develop and implement the Programmatic Agreement in a reasonable and timely manner.

VIII.    Airport Siting

            Wireless telecommunications service providers also are encountering significant impediments to siting antennas at major airports throughout the country.  There is an increasing trend by airport officials to recover revenues lost from pay phone providers by imposing onerous appraisal methodologies that result in significant rate increases on wireless service providers and  foster arbitrary and discriminatory treatment among wireless telecommunications services with respect to the provision of wireless services within and around the perimeter of airports.[52]  This trend is occurring in several major airports that provide facilities for many Federal agencies, e.g., Federal Aviation Administration, Drug Enforcement Agency, FBI, U.S. Customs, etc.  Such methodologies are having a dilatory impact on the deployment of advanced wireless services at these airports. 


CTIA applauds NTIA’s efforts to facilitate broadband deployment in the United State.  As described above, to meet the growing demand for advanced mobile services, it is paramount that adequate spectrum be made available to CMRS providers and that the government eliminate unnecessary regulations that limit the efficiency of currently available spectrum.


                                                                        Respectfully submitted,


                                                                        CELLULAR TELECOMMUNICATIONS

                                                                        & INTERNET ASSOCIATION




                         /s/ Michael Altschul                                                                    ___________________________________

Michael F. Altschul

Senior Vice President, General Counsel

                                                                        1250 Connecticut Avenue, N.W.

Suite 800

Washington, D.C. 20036

(202) 785-0081




December 19, 2001



[1]/          CTIA is the international organization of the wireless communications industry for both wireless carriers and manufacturers.  Membership in the association covers all Commercial Mobile Radio Service (“CMRS”) providers and manufacturers, including cellular, broadband PCS, and ESMR, as well as providers and manufacturers of wireless data services and products.

[2]/            Request for Comments on Deployment of Broadband Networks and Advanced Telecommunications, Department of Commerce, National Telecommunications and Information Administration, Notice, Docket No. 011109273-1273-01 (Nov. 10, 2001) (“Notice”).

[3]/          Notice at ¶ A.

[4]/          Notice at ¶ B.

[5]/          See e.g., Linda Mutschler, et al., “The Evolution of 3G,” Merrill Lynch, April 4, 2001, at pages 4-7 re CDMA and GSM/GPRS migration paths for advanced mobile wireless services and faster data rates.

[6]/          Notice at ¶ C.

[7]/          See “Removing Roadblocks to Broadband Deployment,” Speech by Nancy Victory, Assistant Secretary for Communications and Information, U.S. Department of Commerce, before the Competition Policy Institute on Dec. 6, 2001.

[8]/            Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services, Sixth Report, FCC-01-192, Section II. B (rel. July 17, 2001) (“Sixth Annual CMRS Competition Report”); “Verizon Trialing 3G Network in Philadelphia,” Total Telecom, (October 28, 2001) available at <>; “VoiceStream Signs Further Edge Deal With Ericsson,” Total Telecom (Sept. 28, 2001) available at <>; “Cingular Launches GPRS Service,” Total Telecom (August 28, 2001) available at <>. 

[9]/          See CTIA’s Wireless Industry Indices, December 2001 edition, at Sections 4.0 (Cumulative Capital Investment) and 4.2 (System/Network Capital Investment) at pages 113, and 122.  See also the summary tabular detail in the Cellular Telecommunications & Internet Association’s Twelve-Month Wireless Industry Survey Results, June 1985 to June 2001, at <>.  This capital investment does not include the cost of additional spectrum that wireless operators have bought over the last few years through public auctions and private transactions.

[10]/         See e.g., Linda Mutschler et al., “AT&T Wireless Group:  Visiting with Management,” Merrill Lynch, December 3, 2001, at page 3; see also L. Mutschler et al., “Sprint PCS: No Real Surprises,” Merrill Lynch, December 5, 2001, at page 3; and see “Cingular Wireless Announces New Debt, New Deals,” Wireless Telecom Investor (Paul Kagan Associates), December 14, 2001, at page 2.  Western Wireless Corporation has also begun deploying 1xRTT to support wireless data services.  See Chris Goldman, “Home on the web:  Western Wireless brings 1x data service to a small Montana community,” Wireless Review, November 15, 2001, at pages 18-20.   For a more long-term view, see also “20 Firms for the Next Generation,” Wireless Week, December 18, 2000, at page 14 (listing twenty vendors at the vanguard of advanced wireless technology).

[11]/         See e.g., Linda Mutschler, et al., “The Evolution of 3G,” op cit., at page 4.

[12]/         See CTIA’s Semi-Annual Wireless Industry Survey results at showing U.S. wireless subscribers growing from 38.2 million as of June 1996 to 118.5 as of June 2001.  (It has been estimated that U.S. wireless subscribership was over 127 million in early December 2001.)  Between June 1996 and June 2001, total reported wireless usage grew from 23.6 billion minutes for the six months ending June 30, 1996, to 197.5 billion minutes for the six months ending June 30, 2001.

[13]/         See U.S. Mobile Data Marketplace 2001, The Strategis Group (Jan. 2001) at p. 5; see also, The Yankee Group Report, Wireless/Mobile Services, Vol. 1, No. 17 (Nov. 2000) (estimating 56 million people in the U.S. will be regular users of wireless Internet over a voice-enabled device by 2005).

[14]/         See Morgan Stanley Dean Witter, Technology & Internet Primer, How We Factor Data Into Our Models, December 2000, at page 241.  See also Report ITU-R M.2023, Spectrum Requirements for International Mobile Telecommunications – 2000 (IMT-2000), at Table 8, page 11.

[15]/         See Cynthia Motz, et al., “Wireless:  Growing through a Slowdown,” Credit Suisse First Boston, May 16, 2001, at Table 1.  See also “Metawave Communications Corp.,” First Union Securities, March 9, 2001, at Exhibit 2.  See also Todd Rethemeier, “Wireless Telephony:  From Sea to Shining Sea.  Opportunities in the U.S. National Wireless Industry,” Bear Stearns, May 2001, Exhibits 4 and 8, pages 9 and 13.

[16]/            See CTIA’s Wireless Industry Indices report, op cit., at Section 6.2.1 (MOU Trend Analysis).  

[17]/         Notice at ¶ I.

[18]/         Id. 

[19]/         NTIA Statement Regarding New Plan to Identify Spectrum for Advanced Wireless Mobile Services (3G) (October 5, 2001) available at <> (“NTIA Advanced Wireless Service Assessment Statement”).

[20]/         See, e.g., The Potential For Accommodating Third Generation Mobile Systems in the 1710-1850 MHz Band:  Federal Operations, Relocation Costs, and Operational Impacts, NTIA Final Report (rel. March 2001) available at <>; Report of the Industry Association Group on Identification of Spectrum for 3G Services, attached to Joint Comments of the Cellular Telecommunications & Internet Association, Telecommunications Industry Association, and Personal Communications Industry Association, ET Docket No. 00-258, RM 9920, RM 9911 (filed with the FCC Feb. 22, 2001)

[21]/            47 U.S.C. § 309(j)(1).

[22]/            See NextWave Personal Communications, Inc. and NextWave Power Partners Inc. (Petition for Reconsideration Public Notice DA 00-49 Auction of C and F Block Broadband PCS Licenses); In re Settlement Request Pursuant to DA 99-745 For Various Broadband PCS C Block Licenses, 15 FCC Rcd 17500 at ¶ 27 (2000) (“Section 309(j) embodies a presumption that licenses should be allocated as a result of an auction to those who place the highest value on the use of the spectrum.  Such entities are presumed to be those best able to put the licenses to their most efficient use.”).

[23]/                Omnibus Reconciliation Act of 1993, Pub. L. No. 103-66, Title VI, § 6002, 107 Stat. 312, 387-397 (1993).

[24]/                Services that have been auctioned include:  (1) narrowband and broadband Personal Communications Services, (2) Public Mobile Services, (3) 218-219 MHz Service, (4) Specialized Mobile Radio Services, (5) Private Carrier Paging Service, (6) General Wireless Communications Service, (7) Local Multipoint Distribution Service, (8) Wireless Communications Service, (9) Digital Audio Radio Service, (10) Direct Broadcast Service, (11) 220-222 MHz radio service, (12) Location and Monitoring Service, and (13) VHF Public Coast Stations.  See Implementation of Sections 309(j) and 337 of the Communications Act of 1934 as Amended, 14 FCC Rcd 5206 at ¶ 8 (1999).  The Commission also recently completed its auction of the 700 MHz Guard Band and has announced upcoming auctions of the 700 MHz Band, Limited Low Power Television, and the 24 GHz Band (“DEMS”).

[25]/            See Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 § 3002 (1997).

[26]/         See NTIA Advanced Wireless Service Assessment Statement, op cit.

[27]/            Advanced Wireless Services NPRM at ¶ 68.

[28]/         See October 24, 2001 letter from Nancy J. Victory, Assistant Secretary for Communications and Information, United States Department of Commerce, to Michael K. Powell, Chairman, Federal Communications Commission, filed in WT Docket No. 01-14.

[29]/         Id. 

[30]/         Report and Order, 2000 Biennial Regulatory Report, Spectrum Aggregation Limits for Commercial Mobile Radio Services, WT Docket No. 01-14, FCC 01-328 (rel. Dec. 18, 2001), at ¶¶ 1-2.

[31]/            Statement of Assistant Secretary Nancy J. Victory Regarding FCC Action on Wireless Spectrum Cap (rel. Nov. 8, 2001). 

[32]/         Victory letter at 2 (noting that the FCC’s and DOJ’s existing merger review authority “are more than sufficient to protect against future anticompetitive conduct or consolidation that threatens the public interest.”)

[33]/         See Principles for Promoting the Efficient Use of Spectrum by Encouraging the Development of Secondary Markets, 15 FCC Rcd 24178 at ¶ 28 (2000) (describing industry concerns about constraints imposed by current Intermountain Microwave test for de facto unauthorized transfers of control).

[34]          CTIA is not suggesting that Universal Service Funds be used for support of deploying or subsidizing broadband services.  See CTIA’s Comments, In the Matter of Federal-State Board on Universal Service Review of the Definition of Universal Service, CC Docket No. 96-45 (Nov. 5, 2001).

[35]          See, Competitive Universal Service Coalition White Paper: The Road To Competitive Universal Service Reform, July 2001.

[36]/         Notice at ¶ K.

[37]/         See Sixth Annual CMRS Competition Report at pages 4-5, and 21 (noting the CMRS industry continues to “experience increased competition and innovation” and that the “continued downward price trends, churn, and continued expansion of mobile networks into new and existing markets demonstrate a high level of competition for mobile telephony customers.”).

[38]/         See, e.g., 1998 Biennial Regulatory Review:  Spectrum Aggregation Limits for Wireless Telecommunications Carriers, 15 FCC Rcd 9219 at ¶ 30 (1999) (noting that “[i]f there are five competitors [in a market], the likelihood of a cartel falls [from 100 percent] to 22 percent.”).

[39]/         Notice at ¶ L.

[40]/         See Amendment of the Commission’s Rules to Preempt State and Local Imposition of Discriminatory and/or Excessive Taxes and Assessments, Petition for Rulemaking of the Cellular Telecommunications Industry Association (filed Sept. 26, 1996). 

[41]/         In the Matter of Promotion of Competitive Networks in Local Telecommunications Markets, Notice of Proposed Rule Making and Notice of Inquiry, WT Docket No. 99-217, FCC 99-141, at ¶¶ 81-84 (1999).

[42]/         COST Study at Appendix B.

[43]/         COST Study at 4.

[44]/         COST Study at 13.

[45]/         Notice at ¶ M.

[46]          See CTIA, U.S. Department of Interior Bureau of Land Management, U.S. Department of Agriculture United States Forest Service.  Siting Wireless Antennas:  An Introduction, Federal Land Managers Version (1997); Videotape:  Wireless Telecommunications Systems (CTIA, Bureau of Land Management, U.S. Forest Service 1997) (on file with the U.S. Department of Interior Bureau of Land Management National Training Center); and Forest Service and Bureau of Land Management Special Uses Communication Site Planning  (visited Dec. 19, 2001) <>.  See also Siting of Wireless Telecommunications Facilities Near National Scenic Trails Resolution (visited Dec. 18, 2001) <>; General Services Administration Notice of Bulletin, Placement of Commercial Antennas on Federal Property, 62 Fed. Reg. 3261 (1997).


The U.S. Forest Service (“USFS”) and the Bureau of Land Management (“BLM”) have been the vanguard among Federal land management agencies to address the siting of wireless telecommunications facilities on Federal lands.  They have acknowledged their concomitant obligations under Section 704(c) of the Telecommunications Act of 1996, the Executive Memorandum and the Federal Land Policy and Management Act of 1996 which has supported their efforts in developing a well-balanced, regulatory framework that addresses both the needs of the public who rely on dependable and ubiquitous wireless telecommunications services and the public's desire for the conservation and management of the United States' natural and cultural resources, and its federal lands.  Together with CTIA, they have demonstrated that cooperative efforts between Federal agencies and private industry is an effective and preferable way to address the siting of communications facilities on Federal lands.

[47]          See, e.g., National Park Service’s General Provisions and Rights-of-Way, 62 Fed. Reg. 63488 (1997)(proposed Dec. 1, 1997); Notice of Availability of Policy Statement Concerning Access to National Park Service Property for the Siting of Mobile Service Antennas, 62 Fed. Reg. 39537 (1997) (proposed July 23, 1997); See also, e.g., General Services Administration Notice of Bulletin, Placement of Commercial Antennas on Federal Property, 62 Fed. Reg. 3261 (1997).

[48]             See, e.g., Delaware State Historic Preservation Office, Guidelines for Architectural and Archaeological Surveys in the State of Delaware (visited Dec. 19, 2001) <<>>; Oregon State Historic Preservation Office, Section 106 Cell Tower Guidelines (visited Dec. 19, 2001) <<>>; New Mexico State Historic Preservation Office, Guidelines for Evaluating Proposed Telecommunications Facilities under Section 106 of the National Historic  Preservation Act (visited Dec. 19, 2001) , <<>>.  See also, Florida Department of State Division of Historical Resource, Guidelines for Section 106 Review of Proposed Cellular Tower Locations <> (visited Dec. 19, 2001), <<>>; Missouri Department of Natural Resources Historic Preservation Program (HPP), Section 106 Project Information Form,  HPP 106 Survey Memo Form, and A Guide to the Completion of the HPP 106 Survey Memo, (visited Dec. 19, 2001), <>.

[49]          See infra pp. 17-18.

[50]          See Clem Lagrosa, Draft Project Description, Proposed Santiago Land Management Plan Changes, 3-6 (Aug. 29, 2000) <>.


In September 2000, the Cleveland National Forest Ranger District announced its proposal to amend the Santiago Peak Communications Site Plan.  Concerned that certain commercial wireless services and certain broadcast services may create unacceptable RF interference with public safety communications located on Santiago Peak, the Ranger District proposed several extreme and discriminatory approaches, particularly when there were less draconian alternatives available.   Specifically, the proposed alternatives arbitrarily discriminated among or banned certain wireless telecommunications and broadcast uses based on frequency.  Another alternative sought the removal of all existing wireless telecommunications and broadcast facilities absent any supportable evidence demonstrating that such draconian measures were necessary.  The proposed site plan also had the unintended consequence of excluding advanced wireless services, i.e., wireless data, multimedia and Internet services, without any evidence demonstrating that such services are incompatible with present and future telecommunications services.    It was apparent that the Ranger District had not sought prior guidance or consultation with the FCC, which is the expert agency charged by Congress with regulating and facilitating the efficient use of spectrum and preventing harmful RF interference. While this matter was pending in Federal court for two years, there was very little, if any, action on pending applications for communications uses on Santiago Peak, including wireless telecommunications uses.  Rather than facilitating access, the District Ranger’s decision had substantially delayed the siting of wireless facilities on Santiago Peak. 


[51]          See Protection of Historic Properties, 65 Fed. Reg. 42834 (2000) (to be codified at 3 C.F.R. Part 800 et. seq.)(proposed July 11, 2000), Comments of the Cellular Telecommunications Industry Association (“CTIA Comments”) (filed Aug. 22, 1997).  See also Public Notice, Wireless Telecommunications Bureau Announces Execution of Programmatic Agreement with Respect To Collocating Wireless Antennas on Existing Structures,  DA No. 01-691 (Mar. 16, 1972). See Cellular Telecomm. & Internet Ass’n  v. Slater, et al, No. 01-404 ESH, slip op. (D.C. Sept. 20, 2001).

[52]          See Bob Brewin, Tulsa Airport Looks to Clamp Down on Wireless Use, Network World, Feb. 26, 2001.  See also Qwest Wireless v. Salt Lake City Dept. of Airports, No. 2:01CV-0517ST (C.D. Utah filed July 10, 2001).