Wireless Industry Request for NPA Reconfiguration Faces Opposition
A wireless industry request for reconsideration of the Nationwide Programmatic Agreement (NPA) on tower siting faced strong opposition from groups representing tribal and historic preservation interests. The Tower Siting Policy Alliance (TSPA), whose key members include Cingular, T-Mobile and American Tower, had asked the FCC to revise NPA provisions that diverge from current rules, saying they undermine the goal of streamlining the tower siting approval process and impose burdensome requirements without offering increased protection for historic properties (CD Feb 9 p2). But the National Tribal Telecom Assn. (NTTA), National Assn. of Tribal Historic Preservation Officers (NATHPO) and National Trust for Historic Preservation (NTHP) rebutted such allegations and urged the FCC to deny the petition.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The NPA was signed last year by the FCC, the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO) after years of work and study. It’s aimed at streamlining siting decisions under Sec. 106 of the National Historic preservation Act, which requires federal agencies to consider the impact of construction and modification of wireless facilities located near historic properties. The FCC approved the NPA in Sept. over partial dissents by Comr. Abernathy and then-Comr. Martin. Following the TSPA’s request for reconsideration, the United South and Eastern Tribes (USET) filed an opposition last month (CD March 28 p4). NTTA, NATHPO and NTHP sided with USET.
NTHP, which has representation in the ACHP, said it “strongly disagrees” with the TSPA’s allegations. While the NPA did depart from previous practices, it said, those changes were necessary for the FCC to comply with the Sec. 106 regulations. NTHP said the procedures in the NPA were “substantially more streamlined” than the standard case- by-case review requirements under Sec. 106. It also argued that many provisions which the TSPA opposed serve as “essential safeguards in helping to ensure that effects on historic properties will be taken into account.” It pointed that the TSPA’s complaints about costs, uncertainty and delays that the NPA could cause are “simply unfounded.”
The FCC doesn’t have authority to revise the NPA unilaterally, NTHP said. Since the agreement also was signed by the ACHP and the NCSHPO, any revision to it adopted by the Commission would have to be accepted by those entities to take effect, it said: “Given the history of negotiations over the [NPA], the revisions being sought by the [TSPA] would likely delay implementation of the [NPA] for years. In the meantime, full case-by-case review under the Section 106 regulations would be required for every FCC undertaking. It is hard to believe that the telecommunications industry would want such a result.”
The NTTA said the NPA was “a compromise that will never fully satisfy all involved parties.” It said the TSPA’s request was “self-serving” and “simply seek[s] to escape federal mandates when locating facilities on historical properties.” NATHPO said many “false and misleading comments” could have been avoided if the wireless industry had worked with and learned more about historic preservation in Indian country. That would also help tribal groups learn more about cell tower construction and operation and create “a collaborative working environment,” it said. NATHPO said the TSPA conclusions “ignore the rights and responsibilities of the Federal Government with American Indians, Alaska Natives and Native Hawaiian Organizations.”
The groups also said the archeological surveys required by the NPA weren’t “unduly burdensome” and were required to protect historic properties. They said the agreement properly recognized the unique role of tribal govts. and interests, noting that tribal participation didn’t unfairly burden the review process. NTHP also rebutted the TSPA’s argument that the FCC should be designated as a lead agency in cases where, for example, an FCC-licensed wireless site is proposed on federal lands. They said the FCC should defer to federal land- managing agencies for undertakings on historic properties.
Replying to the USET opposition, which was filed earlier than others, the TSPA said USET did “not refute the bases for any of the TSPA’s reconsideration requests.” It said because the wireless industry wasn’t included in developing and approving the points in the NPA raised in the petition, its filing was “necessary and proper.” TSPA said it was committed to working out differences of principle and opinion with USET, the FCC, the ACHP, SHPOs and other Sec. 106 stakeholders. TSPA again asked the FCC to reconsider the “arbitrary and capricious” provisions of the NPA, saying the requested corrections would “allow appropriate protection of historic properties, including tribal historic properties, without imposing undue and unnecessary compliance burdens” and serve the public interest.