FCC Streamlines Process for Communications Tower NHPA Review

Section 106 of the National Historical Preservation Act (NHPA) requires the FCC (and other federal agencies) to consider the effects of federal undertakings on historic properties. Without a Programmatic Agreement with specific procedures in place, the FCC has to follow the rules of the Advisory Council on Historic Preservation. These rules are highly complex for communications towers and antennas. Last week, the FCC adopted the provisions of a Nationwide Programmatic Agreement that, if approved by the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers (SHPOs), would "streamline and tailor the review process for communications towers and other Commission-licensed facilities under NHPA.

According to the FCC news release, the commission's streamlined process "will provide certainty and ease burdens on everyone involved in the review process while continuing to protect historic properties, including those properties to which federally recognized Indian tribes and Native Hawaiian Organizations attach religious or cultural significance. Increased tower construction has also resulted in an exponential increase in the number of environmental and historic preservation reviews conducted by tower constructors, State Historic Preservation Officers ("SHPOs"), and FCC staff, creating case backlogs, additional paperwork, and delays in the deployment of necessary wireless, public safety, broadcast and other communications infrastructure."

An initial Programmatic Agreement signed in March 2001 excluded most co-locations of antennas on existing structures from routine historic preservation review. The new Nationwide Programmatic Agreement adopted by the FCC includes elements:

1. Describing standards for identifying historic properties that may be affected by an undertaking and assessing effects on those properties, including a streamlined process for identifying eligible properties not listed on the National Register that may incur visual effects;
2. Prescribing procedures including enforceable deadlines for SHPO and Commission review;
3. Providing forms designed to standardize filings to SHPOs;
4. Outlining procedures for communicating with federally recognized Indian tribes and Native Hawaiian Organizations in order to ensure protection of historic properties to which tribes and Native Hawaiian Organizations attach religious or cultural significance; and
5. Establishing categories of "undertakings" that are excluded from the Section 106 review process. These exclusions include: enhancements to existing towers; replacement and temporary towers; certain towers constructed on industrial and commercial properties or in utility corridor rights-of-way; and construction in areas designated by a SHPO.

See the news release for additional information. The Report and Order (FCC 04-222) had not been released when this was written.

A side note: As a fan of Firesign Theater, after over thirty years I still think of the group's radio play The Winning of the West whenever the issue of radio towers on native land is raised. We can hope this Nationwide Programmatic Agreement is a step in the right direction, balancing the needs of wireless communication with the need to preserve historical properties.