FCC Rejects Challenge to 2004 Tower Siting Pacts
The FCC denied a February 2005 wireless industry petition for reconsideration seeking reversal of parts of the National Programmatic Agreement governing the review of proposed wireless towers and other communications facilities for their effects on historic properties. The petition had been filed by the Tower Siting Policy Alliance (TSPA), made up of T-Mobile, American Tower and Cingular, now AT&T Wireless. They objected to what they saw as overly burdensome archeological field surveys and overly permissive tribal exemptions from exclusions. The order was adopted Tuesday and released Thursday. It comes as the commission in creating the National Broadband Plan has increased its attention to siting matters.
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The agreement was signed in October 2004 by the FCC, the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers. It grew out of years of negotiations. The commission approved the agreement over partial dissents by Kevin Martin and Kathleen Abernathy, who were then members.
The alliance contended that the resulting rules in effect require an archeological survey before construction in almost all cases in which preservation matters are raised. “Unfortunately, as crafted, these rules will not streamline the process, nor offer a corresponding increase in protection for historic properties,” the petition said. The group challenged in particular the benefit of archeological studies of paved ground.
The FCC disagreed that the requirements are tough to comply with. “The arguments advanced by the TSPA do not convince us that the archeological field survey requirement is unduly burdensome,” the commission said in rejecting the petition. “We observe that the NPA’s definition of ‘field survey’ is broad enough that it need not always involve any particular scope of sub-surface testing.” In many cases it requires no more than a visual examination to evaluate whether a property contains a historical property, the FCC said.
The industry petition also challenged the tribal and Native Hawaiian organization (NHO) exemption, saying there’s no reason to presume that historic properties of significance to tribes are more likely to be affected than other historic properties by construction within these exclusions. The alliance contends that the requirement of participation by tribes and the Hawaiian groups is “unjustified, inequitable, and overbroad,” the FCC noted. The commission disagreed. “Because properties of traditional religious and cultural importance to Indian Tribes and NHOs often are not listed in the National Register or other published sources, comparable protection for these properties could be achieved only by seeking information directly from Indian Tribes and NHOs,” the order said.