TOWER SITING AGREEMENT INCHES FORWARD, TAKES ON NATIONAL SCOPE

Telecom working group, which includes Advisory Council on Historic Preservation (ACHP), FCC, National Conference of State Historic Preservation Officers (NCSHPO) and tribal officials, has been working on streamlining Sec. 106 siting requirements. Point has been to spell out for both state historic preservation officers and industry what is needed for compliance. Sec. 106 requires federal agencies to consider effects of undertakings, including tower construction and expansion, on historic properties. Last year, nationwide program agreement was finalized for colocation of antennas on wireless and broadcast towers. Nationwide agreement now under review covers new sites. State prototype model earlier this year would have required approval of FCC and ACHP and then left it up to each state to decide whether to actually use prototype. So language of agreement could have been tweaked on state-by-state basis. One industry source said negotiators shifted focus to nationwide agreement when it became clear that such state-by- state sign-offs would be unwieldy to implement.

National pact now under consideration means national SHPO organization must approve agreement for it to move forward. Under previous state-by-state version, after negotiations concluded for prototype, state and tribal representatives would have held talks for individual state implementation, source said. “The prospect became too daunting,” source said. One industry insider said SHPOs and tower operators largely agreed that majority of Sec. 106 reviews resulted in finding of no adverse effect. Agreement is way to create draft exclusions for categories of towers that could be handled under streamlined review so resources could be spent where needed. FCC and ACHP agreed to nationwide model this fall following meeting between FCC Chmn. Powell and ACHP Chmn. John Nau, several sources said. FCC spokeswoman declined to confirm or comment on meeting.

“The thoughts several months ago of what people were thinking of for this programmatic agreement was the state prototype model,” said Jeff Steinberg, deputy chief of FCC’s Commercial Wireless Div.: “Certainly from the standpoint of the Commission and of the Advisory Council, where we would like to go with this is a national programmatic agreement. That’s what we are working towards.” Ultimate framework hasn’t been decided, he said: “There are still ongoing discussions, but that is what we would like to be working towards.”

“It’s my impression that everybody is working in good faith and trying to reach a compromise,” said Nancy Schamu, exec. dir. of NCSHPO. Final agreement would have to be signed by ACHP, FCC and pres. of NCSHPO board, she said. “Once there’s a discussion draft, it will go to all the SHPOs and we'll see what happens,” she said. While NCSHPO decisions are consensus-based, Schamu said that didn’t mean SHPO members had to provide unanimous agreement to move forward.

“Changing to a nationwide agreement changed a great deal in terms of how people viewed the terms,” industry source said. “SHPOs lost their comfort zone that they could probably change provisions that they didn’t like in negotiations in their individual states. There is much more front-loaded pressure now.” (Approval of agreement by NCSHPO will make pact binding on all states.)

One wild card appears to be reception of tribal representatives of final draft, several sources said. “Let’s just say that we're not really happy with any of this and that we will pursue our own course,” said William Day, chmn. of culture and heritage committee of United South and Eastern Tribes (USET) and tribal historic preservation officer for Poarch Creek Indians in Ala. Day, who is member of group that’s drafting nationwide agreement, said he and other tribal representatives met with FCC Chmn. Powell last month. Day also testified at Senate Indian Affairs Committee hearing in May, raising concerns about what he said was “failure” of FCC to comply with federal law that required consultations with tribal govts. before cell towers were built. USET represents 24 tribes from Me. to Tex.

As for pending program agreement, “so far there has only been the input of 2 people representing tribes and that’s very late in the process,” Day said -- he and Navajo Nation Cultural Resource Compliance Officer Peter Noyes having been involved in drafting.

National Historic Preservation Act requires consultation with tribes when “undertaking,” such as proposed tower construction, would have effect on historic properties that were included on or eligible for National Register of Historic Places. Day said he remained concerned that FCC had delegated that responsibility to private wireless tower operators by requiring them to consult with tribes. “The law clearly states that they [FCC] cannot delegate their government-to-government responsibility and their federal responsibility to federal tribes by arbitrary delegation,” Day said.

Among areas of draft under close watch is proposal on what constitutes area of potential effect, which is geographic area in which tribal or state historic preservation officer examines potential impact. Proposal would presume one-half mile visual area of potential effect for towers up to 200 ft., said Washington attorney John Clark at PCIA zoning seminar last week. For towers up to 400 ft., area would expand to 3/4 of mile and for structures over 400 ft. area would be 1.25 miles, he said. “It’s difficult to imagine how a tower can visually affect the eligibility of a property when the property is defined historically as a boundary many times well away from where the tower is,” he said. Those issues get into areas of more local esthetic concerns that typically are purview of zoning boards, he said. “The role of the SHPOs, the role of Sec. 106 is very much narrower,” Clark said. “In many cases it’s not being applied narrowly as the words of the law really require.”

One of key concerns among state historic preservation officers in past has been that FCC licensees haven’t always relied on consultants with extensive experience in dealing with Sec. 106 and historic preservation, Schamu said. While FCC itself hasn’t had preservation expert on staff, she said that’s changed with recent hiring of Amos Loveday by Wireless Bureau as cultural resources specialist. He is former Ohio SHPO.

“Broadly put, I see my position as simply helping the agency balance the needs that they have to look at historic preservation with those of the other objectives the Commission has for encouraging telecommunications, in our case wireless,” Loveday told us. Among his state experiences that Loveday said he could bring to bear in his new FCC role was in bridging even simple issues such as different terminology that might be used by preservation community and engineers and lawyers at FCC. “What one group means by an undertaking may not be what another group means,” he said. “We're really interested in trying to serve as an interpreter for these groups.” In other cases, issues are more technical, such as when tower applicant must contact SHPO and zoning board as part of approval process, he said. Loveday said he worked through such issues in Ohio and was interested in seeing how approaches that worked there and in other states could be applied elsewhere.

As for involvement of tribal representatives, Steinberg said efforts had been stepped up to include them in development of programmatic agreement. In general, he said: “We're open to talking with tribes at any time they want to bring their issues before us to engage in the consultation process.” Commission continues to emphasize to licensees importance of making efforts to determine whether project will affect tribal interests, Steinberg said. “That’s been our policy for quite some time but I think we're focusing increasing attention on it,” he said.