An FCC draft of voluntary best practices on tower siting reviews ...

Powell said last month at an Arlington, Va., conference of the United South & Eastern Tribes (USET) that USET and the Commission were in the final stages of drafting voluntary best practices for siting towers that could affect religious sites on tribal land. 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. The National Historic Preservation Act requires federal agencies to take into consideration the effects of their undertaking on historic properties included in or eligible for the National Register of Historic Places, including tribal sites. One industry source noted that although the best practices were voluntary they were important because tribes may require them as part of negotiations on tower siting and because they could play a critical role in showing a good faith effort to negotiate. FCC staff recently asked for industry feedback on the summary of best practices. The source said one industry concern about the draft best practices was the extent to which a non-response from a tribe would entail FCC intergovernmental consultation with tribes, a step that would add time to the siting review process. Another concern involves compensation of tribes for professional services. A summary of the draft best practices notes that in line with the requirements of the Advisory Council on Historic Preservation, payment to a tribe is appropriate when an agency or applicant asks the tribe to take on a role as consultant in identifying historic sites of tribal significance. The summary said that in “providing their special expertise, tribes are fulfilling a consultant role.” One source said that a concern by some in industry is not that tribes be compensated for providing such consultation services, but the extent to which such payments would be made to tribal representatives acting as both consultants on a project and judges as to whether the proposed tower raised objections. The draft summary sets up a 2-step process in which applicants can contact a tribe “in a good faith, respectful and culturally sensitive manner befitting the nature of correspondence with a sovereign government.” The tribal official would have 10 business days to advise a tower applicant whether there isn’t a likelihood of eligible properties of interest to the tribe in the area. If there may be properties eligible for the National Register, the tower siting applicant and tribal official would discuss protection measures. If the tribe didn’t respond in 10 business days, the siting applicant would advise the tribe and the FCC in writing of this failure to respond, the draft summary said. “Upon receipt of information that a tribe has failed to respond to an applicant’s initial contact, the Commission will initiate government-to-government consultation under Section 106,” the draft said. USET said last month the agreement on best practices affirmed “government to government” relations between USET tribes and the U.S. The FCC also created a database last month for a voluntary system that Chmn. Powell said would provide an “early notification” of tower construction that might affect historic properties or tribal religious sites.