DisabRA argues that public rights-of-way need to remain accessible, and the Commission should ensure that BPL deployment does not result in obstruction of rights-of-way. (DisabRA Opening Comments, pp. 2-3.) As an example, DisabRA cites the digging up of sidewalks as an activity that obstructs a right-of-way.46 We recognize that such obstructions can place a significant burden upon individuals with disabilities. Thus to the extent that a utility or a BPL company needs to access existing facilities, whether underground (e.g., vaults) or above ground (e.g., poles), the responsible companies must maintain rights of way or alternative paths of travel that are accessible for people with disabilities, as requested by DisabRA.
CARE's comments focus on the biological effects of radio frequency radiation, and possible health impacts of BPL. (CARE Opening Comments, pp. 1-8.) CARE claims that there may be adverse health effects from BPL and that evidentiary hearings are therefore warranted. (Id. pp. 4-8.)
SDG&E and CTIA oppose these hearings. SDG&E notes that the FCC has exercised jurisdiction in the area of the potential health effects of radio frequency radiation, and argues that CARE should address its concerns to that agency. (SDG&E Reply Comments, pp. 15-17.) CTIA contends that the issues identified by CARE are subject to exclusive federal regulation by the FCC, and accordingly this Commission's ability to consider such issues is preempted by federal law. (CTIA Reply Comments, pp. 1-2.) CTIA adds that CARE's claims of adverse health effects are unfounded. (Id., pp. 2-4.)
SDG&E and CTIA are correct that the health effects of radio frequency radiation is an issue subject to federal, rather than state, jurisdiction.47 In particular, Section 704 of the Telecommunications Act of 1996 states that "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's [FCC's] regulations concerning such emissions."48 Moreover, "personal wireless services" and "personal wireless facilities" are defined in a particularly broad way that includes the facilities associated with the deployment of BPL.49 In addition, concerning the radio waves used in the transmission of the BPL within the electric wires, the FCC has jurisdiction over this service. The FCC has stated that "As Access BPL systems use radio frequencies for interstate communications purposes over wire, this Commission has full jurisdiction over such transmissions."50
We note that the FCC, as the agency that authorizes and licenses transmitters and facilities that generate radio frequency radiation, has addressed the potential biological effects of radiofrequency electromagnetic fields through technical bulletins.51 Accordingly, we do not address the issue here, and we do not reach the substantive issue of whether there are potential health effects from the deployment and use of BPL because it clearly lies outside our jurisdiction.
On March 6, 2006, CARE filed a motion seeking CEQA review of the effects of radio frequency emissions. As this discussion makes clear, we lack jurisdiction over this matter. Accordingly, CARE's March 6 motion is denied.
46 The record in this proceeding, however, does not support the need for the BPL provider to dig up sidewalks.
47 CARE was provided an opportunity to respond to CTIA's jurisdictional arguments, but was largely unable to do so. (PHC Transcript, p. 25.)
48 Codified as 47 U.S.C. § 332(c)(7)(B)(iv).
49 47 U.S.C, § 332(c)(7)(C) states that:
C DEFINITIONS. For the purposes of this paragraph:
(i) the term "personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
(ii) the term "personal wireless service facilities" means facilities for the provision of personal wireless services; and
(iii) the term "unlicensed wireless service" means the offering of telecommunications service using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v)).
Thus, this Commission cannot regulate the placement of these devices based on the effects of radio frequency emissions to the extent that such facilities and devices comply with FCC regulations.
50 See In the Matter of Amendment of Part 15 regarding new requirements and measurement guidelines for Access Broadband over Power Line System, ET Docket No. 04-37; Carrier Current Systems, including Broadband over Power Line Systems, ET Docket No. 03-104, Report and Order, October 28, 2004 (Final rule; 70 FR 60742; October 19, 2005; Effective date 10/19/2005; Eff. date; 70 FR 56856, September 29, 2005; Eff. date 7/22/05).
51 For example, see Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields, OET Bulletin 65, Edition 97-01, (rel. August 1997) and Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields, OET Bulletin 56, Fourth Edition, (rel. August 1999).