AGREEMENT ON TOWER SITING PACT MISSES FCC TARGET DATE

In changes proposed this week, the Advisory Council for Historic Preservation (ACHP) “brought forward a number of issues that have led industry to conclude future negotiations would not be particularly fruitful,” said PCIA Exec. Vp Julie Coons on a Thurs. audioconference on tower siting. “Our understanding is that the Commission will take up the agreement in its March open meeting and that they will proceed with the process,” said Coons in an audioconference sponsored by the Women’s Wireless Leadership Forum (WWLF). The agreement is expected to be teed up for FCC approval as a report and order, she said. The document was designed to be a pact that would be signed by the FCC, the ACHP and the National Conference of State Historic Preservation Officers (NCSHPO), Coons said. Given that ACHP continues to have concerns, she said it wasn’t clear “consensus will be reached.” Separately, an ACHP official told us the changes weren’t the sole work of the Council but represented a broad set of views in the historic preservation community.

The remaining disagreements cap a process that has been marked by frequent controversy but had made progress in recent months. The process to reach an NPA to streamline wireless and broadcast tower siting reviews hit a new snag last month when the ACHP raised concerns about how certain types of sites would be excluded. But at the time, FCC and some industry officials voiced confidence that differences could be worked out relatively quickly (CD Feb 2 p2). Federal regulators, state and tribal representatives and industry groups have been negotiating the agreement, but the pact itself is to be signed only by govt. groups, not industry, one source noted.

The pending NPA would streamline tower siting reviews under Sec. 106 of the National Historic Preservation Act (NHPA). The Commission had solicited comments last year on a draft agreement for streamlining such tower reviews. Sec. 106 requires federal agencies to consider the effects of an “undertaking,” including tower construction and expansion, on historic properties. At the request of those involved in the negotiations, the FCC allowed those working on the NPA more time to consider the issue of sites “potentially” eligible for listing on the National Register of Historic Places (CD Feb 2 p2). House Resources Committee Chmn. Pombo (R-Cal.) and National Parks Subcommittee Chmn. Radanovich (R-Cal.) told the ACHP last fall they were concerned about the applicability of the Council’s siting rules to the large number of properties “potentially” eligible for the National Register and the impact of that on tower siting.

The Wireless Coalition to Reform Section 106 told the FCC in a filing it had broader concerns over proposed changes to the NPA presented by the ACHP this week. The coalition includes AT&T Wireless Services, American Tower Corp., Cingular, PCIA, Sprint, T-Mobile USA and Verizon Wireless. “The number and scope of the changes proposed by ACHP -- many for the first time -- seek to change crucial foundational terms and myriad aspects of the NPA that we find ourselves unable to address,” the filing said. “We do not believe it would be appropriate for industry to initiate consideration of these changes proposed by the ACHP, as you and others have indicated to us that the Commission, ACHP and NCSHPO otherwise had long ago reached agreement on these terms for the final version of the NPA,” the filing said.

But ACHP Program Analyst Charlene Vaughn stressed the Council wasn’t unilaterally pressing for the proposed changes to the draft NPA. “It’s been a dialogue,” she told us, saying NCSHPO, the National Trust for Historic Preservation, tribal groups and others have been involved as consulting parties in the suggested changes. Proposed changes were identified based on the comments the FCC solicited with its notice of proposed rulemaking, she said. “There was a need to consider how we were going to clarify and attempt to further streamline all these issues,” she said: “We are still within the basic framework of the original programmatic agreement and making provisions that are responsive to a lot of comments.”

The concern of some in industry concerning the changes are the alterations of basic terms in the NPA, one industry source said. The wireless coalition filing, for example, takes issue with a change presented by the ACHP and others for “areas of potential effects” (APE), which would be defined as the geographic area in which construction may directly or indirectly cause alterations in the character or use of historic properties, “if such properties exist.” The wireless filing said this “directly contradicts the definition of APE already contained in the NPA, upon which all parties have relied for years.” The industry source said one concern is that the definitions that have been in the draft NPA for a year reflect the language in the ACHP’s own rules.

“There’s tremendous uncertainty about the sum and substance of this agreement,” said Luisa Lancetti, Sprint PCS vp-federal regulatory affairs, in the WWLF audioconference. Lancetti said she was “hopeful” that the agreement overall would be useful to industry. One concern is that the agreement not “end up with arrangements in stone that might be even more difficult and complicated than what we have today.”

“This has been a very long and agonizing process,” said Rebecca DeMoss, regulatory compliance dir. for American Tower. “It would be unfortunate after all the time that has been spent to not at least get something into place.”

Monica Gambino, assoc. gen. counsel-regulatory affairs for Crown Castle USA, said the intent of the NPA has been to exclude certain categories of undertakings for review and streamline the review process for other tower projects. One proposed category for exclusion involves construction of temporary towers, defined as those that will be up no more than 24 months, she said. Other towers in this group are facilities authorized by the FCC grant of a special temporary authority or emergency authorizations, broadcast auxiliary service trucks and temporary ballast towers that involve no excavation. “There’s a lot of vagueness now about what to do with these towers under Sec. 106,” she said. When the FCC put out the NPA for public comment, it sought feedback on a request by certain tribes that they receive notice of excluded undertakings to ensure there wouldn’t be issues with sites of religious or cultural significance, Gambino said. “It’s not clear whether that will be in [the final agreement] or not,” she said.

The wireless industry filing said the changes suggested by the historic preservation community this week “went far beyond the limited issues we asked the Commission for time to resolve.” After the FCC granted more time, meetings and conference calls were held Jan. 29, Feb. 6, 12 and 17. In a separate filing this week, the United South & Eastern Tribes told the FCC it opposed proposed exclusions under the draft NPA, particularly ones involving interstate highways and railroad rights of way. The FCC reached an agreement with the intergovernmental tribal group, which represents 24 tribes, on best practices for communications tower siting. In the filing this week, USET also “repeated its support for its proposed alternative in the draft National Programmatic Agreement regarding participation of Indian tribe and Native Hawaiian organizations in undertakings off tribal lands.”