HISTORIC PRESERVATION DRAFT AGREEMENT SAID TO NEED IMPROVEMENT

CTIA said while the draft NPA didn’t completely address the telecom industry’s concerns, the Commission should preserve its basic content. It warned the FCC that no changes should be made that would “diminish the efficiency of [the document’s] terms and procedures. If such changes are made through this NPRM, CTIA will withdraw its support for the FCC process and take all necessary steps to oppose the resulting requirements.” The CTIA said the draft fully met the FCC’s duties to Indian tribes and strongly objected to a Navajo Nation proposal to require tribal notification of every undertaking and the United South and Eastern Tribes (USET) proposal for a more extensive consultation procedure: “USET has incorrectly construed the legal requirements applicable to consultation with Indian tribes.”

CTIA said a mandatory 30-day limit for review should be imposed on State Historic Preservation Officers (SHPO) and Tribal Historic Preservation Officers (THPO), with “automatic completion of the process if a SHPO or THPO doesn’t respond within 30 days.” CTIA said the Commission should retain the documentation standards developed through the Telecom Working Group process, subject to CTIA’s proposed editorial changes. It also should also accept the definition developed in other contexts that tower siting decisions didn’t qualify as undertakings under Sec. 106.

The National Trust for Historic Preservation (NTHP) urged the FCC to narrow the scope of exclusions. It proposed that modification of tower and replacement tower exclusions be limited to towers that had been reviewed on compliance with Sec. 106: “This is an especially important safeguard for archeological resources, since the definition of ’substantial increase in the size of the tower’ in the Nationwide PA for Colocation… allows excavation anywhere within the boundaries of the leased or owned property surrounding the tower. If the original tower was constructed in violation of Section 106, archeological resources within that area would not have been surveyed and would be vulnerable to destruction.”

A significant number of issues with the NPA remain unresolved and further clarification and revision is necessary, the American Tower Corp. (ATC) said. It said the FCC must: (1) Enforce strict and uniform timelines for review and comment for all parties involved in the Sec. 106 process. It said many of the time frames already in the draft NPA must be strengthened and exceptions eliminated to “better ensure that the consultation process will not be bogged down.” (2) Clarify that construction of a tower by a nonlicensee didn’t constitute an undertaking subject to Sec. 106: “If such an activity is an undertaking, the tower owner, not the carrier, should be primarily responsible for Section 106.” (3) Revise the Sec. 106 complaint procedures to address timelines for complaints, the required substantive burden and reviewable issues.

The final NPA should “clearly exempt from Section 106 review any class of undertakings that present little or no ability to cause adverse effects to historic properties,” the ATC said. It said “with certain notable exceptions, [Indian] tribes should not be granted greater rights or be forced to bear greater burdens than other consulting parties. The time frames for tribal participation should be firm, and contain no exception.”

The Wireless Communications Assn. (WCA) said the Commission should issue a “blanket statement” confirming that all licensed providers of wireless service were covered by the Nationwide Agreement, “regardless of the spectrum they use or the services they deliver.” It said it was concerned that the list of covered activities and services in Attachment 2 to the Nationwide Agreement might “create a false impression that certain wireless services are not covered by the Agreement.” For example, it said, the Agreement’s list of covered fixed wireless services referred to those in the 24 GHz, 28 MHz, 39 MHz bands and Multiple Address Service (MAS), but didn’t list those in the 700 MHz, MDS/ITFS, Wireless Communications Service and 4.9 GHz bands.

The National Assn. of Tribal Historic Preservation Officers (NATHPO) complained that the NPA, which “deals directly with many tribal historic preservation issues… has been crafted with minimal tribal input.” It said the publication of the NPR “may satisfy requirements to seek public comment, but it does not constitute or substitute for consultation with Tribal governments in developing policies that will affect all Indian tribes and Native Hawaiian organizations (NHOs).” NATHPO urged the Commission to “withdraw this proposed action and immediately undertake a program of active, direct, face-to-face consultations with Tribal governments and NHOs.”

The NTHP said there should be a 2-year time limit for the FCC to grant both the Special Temporary Authorization and experimental authorizations: “Experimental authorizations should not be allowed to continue indefinitely without some analysis of the potential damage to historical resources.” The NTHP said that exclusion also should be modified to address the issue of archaeological resources: “While the visual intrusion of a temporary structure will be abated when the structure is removed, any damage to archaeological resources is irreparable.” It said the “no excavation” condition should be added to all of the categories in that exclusion to ensure archeological resources were protected.

The NTHP supported the concept of an exclusion that would encourage the location of towers in existing industrial areas, but said the exclusion should be limited to facilities no taller than 200 ft. It said the construction of towers taller than 200 ft. could “significantly diminish the feel and integrity of a historic district or traditional cultural property.” It also expressed concern that the size of the “industrial” or “commercial” area that would trigger the exclusion was “far too small -- just 10,000 square feet. Allowing such a tiny site to be considered an exempt ‘industrial’ or ‘commercial’ area would create an enormous loophole.” The NTHP also said the limitation that no structure 45 years old or older could be located within 200 ft. of a proposed facility was “inadequate. The presumed Area of Potential Effects for assessing the visual effects of the facility would be 1/2 mile, or 3/4 mile for towers between 200 and 400 feet. By that standard, a buffer of 200 feet would be completely inadequate.”

Cingular Wireless pointed at some flaws in the NPA that it said needed to be corrected: (1) The NPA and the FCC’s rules should include a safe harbor for licensees that bought facilities for which the previous owner might not have conducted the NHPA review. (2) The draft agreement, consistent with Colocation Agreement and other program accords, shouldn’t apply to Native American tribes: “Tribal consultation raises a number of complicated issues that should be addressed in a separate proceeding.” (3) Specific provisions in the Agreement should be altered to ensure finality, consistency and predictability for all parties and to make the Agreement more effective.