FCC TAKES STEPS ON TOWER SITING ON TRIBAL LANDS

The United South & Eastern Tribes (USET), which signed the agreement on best practices with the FCC, said it addressed the many cell towers built without compliance with National Historic Preservation Act (NHPA) Sec. 106. It requires federal agencies to consider the effects of an “undertaking,” such as tower construction on historic property. The FCC has approved cell tower companies’ contacting tribes to solicit their views, so tower companies “have sent thousands of letters to tribes, generally with unreasonable deadlines and asking for tribal expertise without offering compensation,” USET said. USET Pres. Keller George said the agreement affirmed “government-to-government” relations between USET tribes and the U.S. Powell signed the memorandum of understanding on the best practices at a USET legislative conference in Arlington, Va. USET includes 24 tribes from Me. to Fla. and Tex.

The FCC and USET said they were in the “final stages” of drafting voluntary best practices for siting towers that might affect religious sites on tribal land. CTIA and other wireless groups recently urged the FCC make the best practices document strictly voluntary. The groups also asked the Commission to spell out that a pending national program agreement (NPA) on tower siting and the best practices not supersede or modify any business relationships between tower applicant and tribe. The best practices involve identifying “practical, voluntary” methods by which the tower industry and USET tribes can work to preserve properties of religious and cultural significance to tribes. NHPA requires federal agencies to take into consideration the effects of their undertakings on historic properties included in or eligible for the National Register of Historic Places, including sites of traditional religious and cultural importance to a tribe.

USET had been a vocal critic of FCC tower siting policy, and raised concerns about earlier NPA drafts. USET officials had charged that the agency had failed to comply with the NHPA, which they said required consultations with tribal govts. before cell towers were built. USET’s George lauded Powell Tues. for how far the agency had come. USET said tribal concerns on cell tower licensing had focused on tower companies’ seeking free tribal siting expertise. “The information requested is of such a character that private companies would normally provide compensation to obtain it but the cell tower companies have generally refused to compensate the tribes,” it said. USET has raised concerns that the FCC had delegated its consultation duties under the NHPA to tower operators by requiring them to consult with tribes.

Powell said the Web-based Tower Construction Notification System would allow tribes access, including a 30-day window to update information before the FCC began to send notifications. In the first week of March, the Commission will send its first electronic and regular mail notifications for any proposed tower construction notification received since Feb. 3. The system provides “early notice” to tribal and state historic preservation officers of proposed tower projects. “The system is aimed at providing an efficient and effective means by which the tower construction industry can inform tribal and cultural preservation representatives of proposed tower construction sites,” he said. “By receiving early notification of proposed construction, situations where towers are constructed prior to completion of the Sec. 106 process should be avoided, ensuring protection of religious and culturally significant tribal historical properties.” He called it a tool to “facilitate Sec. 106 communications” that shouldn’t replace consultation. “The FCC will consult on a government to government basis with federally recognized tribes.”

Anyone proposing a tower can submit a voluntary electronic notification about the proposed project. The FCC will make that information available to parties that will have access to the electronic system. Tribes, historic preservation officers and others can submit electronic responses, which will be sent to the project planner. “This will also allow the Commission to consult on a government-to- government basis with federally recognized tribes earlier in the preconstruction process,” the FCC said.

Last May, Powell pledged a more “proactive approach” to environmental and historic preservation issues in tower siting, including better coordination with other agencies and stepped-up enforcement (CD May 2 p1). He told the USET the Commission had made “significant progress” in several key areas of the plan, including a draft national program agreement. That would streamline wireless and broadcast tower siting reviews and involved input from the Advisory Council on Historic Preservation (ACHP), tribes, state historic preservation officers and others. “This rulemaking is in its final stages and has benefited greatly from the consultation and comment of the tribes,” he said. Last week, the ACHP raised concerns about exclusion of some site types under the NPA (CD Feb 2 p2).