FCC Adopts Nationwide Programmatic Agreement on Tower Siting
 
March 31, 2005
 
Peter M. Connolly- Washington

Background

The Federal Communications Commission (FCC) has recently adopted a Nationwide Programmatic Agreement (NPA) which alters its procedures for ensuring licensee compliance with the National Historic Preservation Act.  Any company which must register towers with the FCC should pay close attention to those requirements.  The NPA, which took effect on March 7, 2005, is an agreement among the FCC, the Advisory Council on Historic Preservation (ACHP), and National Council of Historic Preservation Officers (NCHPO), which the FCC has incorporated into its rules. The NPA excludes from review under Section 106 of the National Historic Preservation Act (NHPA) certain proposed new towers, but sets complex procedures for review of non-excluded new towers.

The order adopting the NPA has been appealed to the U.S. Court of Appeals for the D.C. Circuit by parties alleging that tower siting is not a federal “undertaking” under the National Environmental Policy Act (NEPA), but no stay has been granted and interested parties have to assume the rules will remain in effect.

Exclusions

“Enhancements” of existing towers not involving a substantial increase in tower size or “replacements” of existing towers are now excluded from NHPA review.  If the existing tower was constructed after March 2001, however, it must have undergone Section 106 review or else the exclusion does not apply.

Construction of a “temporary” tower is now excluded from NHPA review, provided that either no “excavation” is required  or that all areas to be excavated have been previously “disturbed.”  “Temporary” is defined as meaning no more than 24 months in duration.

Construction of a tower less than 200 feet above ground in an existing industrial park, strip mall, or shopping center which occupies a total land area of 100,000 square feet or more is excluded, provided the area is not within 500 feet of an historic district.  This exclusion does not exempt the carrier from tribal notification requirements, to be described below.

Construction of a tower within 50 feet of a “right of way” designated by a state, federal or tribal government for the construction of antenna towers or utility transmission lines is excluded, provided the tower is not “substantially” larger than any nearby towers.  This exclusion also does not exempt the carrier from tribal notification requirements.

If a tower is not “excluded” it must be reviewed by the relevant State Historic Preservation Officers (SHPOs) and other “consulting” parties.

Tribal Notification Requirements

Applicants must notify certain Indian tribes and Native Hawaiian organizations (NHOs) regarding any proposed, non-excluded new towers and those new towers covered by the “industrial area” and “right of way” exclusions.  The tribes and NHOs which must be notified are those which have indicated an interest in the area in which the tower is to be constructed.  They need not presently inhabit the area in question to have an interest in it.  There is no one source to consult to determine whether a tribe has expressed a desire to be notified for a given area.  The FCC is developing a volunteer electronic Tower Construction Notification System in which tribes can register their interest in a given area but carriers and consultants must check other sources, including SHPOs and the Bureau of Indian Affairs to determine the appropriate tribes to notify.

Applicants must notify the relevant tribes of a proposed tower in the manner specified by the tribe.  Applicants must make several attempts at notification if an Indian tribe with an interest in a given area does not respond to the first notification.  The tribe will then determine whether it is “interested” in the tower.  If a tribe expresses “interest,” it is to be treated as a “consulting party,” entitled to receive at least the same information concerning the proposed tower as the relevant SHPO.

Public Participation

Applicants must also ascertain the members of the public, besides SHPOs and Indian tribes, who have expressed an interest in the tower.  Such persons are also authorized to participate in the review process.  Public notice can be provided through the public notice provisions of local zoning, historic preservation laws or through publication in local newspapers concerning the proposed tower.  Once consulting parties are ascertained, they must be served with the relevant documents, including the SHPO “submission package.”

Effects

Applicants and their consultants must determine, for their submissions to SHPOs, Indian tribes, consulting parties, and the FCC, whether the proposed tower will have “no effect” on historic properties, “no adverse effect” on such properties, or an “adverse effect” on any property listed or “eligible for listing” in the National Register of Historic Places.  Tribal “sacred sites” will probably be considered “eligible” for those purposes.  The NPA distinguishes between “direct” and “visual” effects, with “direct” effects considered to be those on the tower’s immediate vicinity and “visual” effects being effects on the tower’s surrounding area.  If a tower is 200 feet or less in overall height, the “area of potential effect” (APE) for visual effects is one-half mile; if the tower is more than 200 and less than 400 feet in height, the APE is three-quarters mile; if more than 400 feet in height, the APE is one-and-a-half miles. 

Applicants must evaluate whether the effect on any “eligible” properties will be “adverse.”  That evaluation will generally require the services of a qualified professional.  The NPA appears to require the use of a professional archeologist to evaluate “direct” effects, but not visual effects.

Any dispute between the applicant and the SHPO or between the applicant and an Indian tribe about whether a given property is eligible for “historic” status or whether an effect is “adverse” on such a property within the “area of potential effect” (APE) of the tower must be decided by the FCC.

Procedures

In order to demonstrate that a proposed tower will not have an adverse effect on an historic property, applicants must submit their “submission package” to the SHPO and any affected Indian tribe, or other consulting party.  SHPOs will have 30 days to review such submissions.  They will then advise the applicant whether they agree or disagree.  The SHPO may request additional information, which will extend the deadlines.

SHPOs may determine that there will either be no effect or no adverse effect on historic properties from a proposed tower.  In that case, the applicant may proceed with the project.  The SHPOs determination will presumably incorporate the relevant Indian tribe’s findings.  The NPA is unclear about SHPO/tribal interaction.

However, if the SHPO disagrees with the applicant and determines that the proposed tower will have an adverse effect, the applicant may then submit the submission package and SHPO determination to the FCC for decision.  If either the applicant and SHPO together or the FCC ultimately determines that a proposed tower will have an adverse effect, the applicant may propose mitigation measures designed to reduce or minimize the adverse effect.  Such mitigation measures would have to be approved by the FCC and ACHP. 

Content of Submission Packages (SPs)

SPs must include applicant and consultant contact and background information and a detailed description of the proposed tower, including site diagrams, a description of the APE, identified historic properties, the effects of the proposed tower on those properties, photographs and maps.

Enforcement

Failure to comply with the NPA will give rise to a violation of the NHPA, which can be “mitigated” by taking those measures, up to and including removing the tower, which either are agreed to in a “Memorandum of Agreement” among the FCC, SHPO, ACHP and the licensee, or ordered by the FCC.

Conclusion

Adoption of the NPA establishes a roadmap for FCC licensee compliance with their historic preservation obligations.  Licensees should understand the requirements of the NPA and must make any necessary modifications of their procedures to comply with it. 

 For more information, e-mail Peter Connolly at peter.connolly@hklaw.com or call toll free, 1-888-688-8500.