It is important for licensees to have established procedures and policies to educate and monitor their employees and consultants involved in tower construction regarding NPA compliance.
The Federal Communications Commission (FCC) recently issued a Report and Order affirming several provisions of the Nationwide Programmatic Agreement (NPA) historic review process for construction of communications facilities.
The National Historic Preservation Act requires federal agencies, such as the FCC, to take into account impacts on historic properties caused by federal undertakings. The FCC has determined that the construction and modification of certain antenna structures, as well as the registration of towers, are federal undertakings that trigger the historic preservation review requirements. The FCC's NPA sets forth the procedures that wireless licensees and proponents of tower construction must follow before engaging in construction activities. In 2001, the FCC also entered into a Collocation Agreement that governs the procedures for reviewing the potential impacts to historic properties from collocating wireless antennas on existing structures.
Although many licensees are generally aware of the need to conduct environmental reviews before engaging in tower construction, the FCC has taken enforcement action against licensees for procedural violations of the NPA even if there is no adverse impact on historic properties. Thus, it is important for licensees to have established procedures and policies to educate and monitor their employees and consultants involved in tower construction regarding NPA compliance.
In response to a petition for reconsideration filed by an industry trade group of wireless carriers and tower companies, the FCC declined to make any changes to the NPA. However, the FCC provided guidance and clarification that will assist applicants in further streamlining the tower siting process. Among other things, the FCC stated the following:
Archeological Field Surveys
The NPA's definition of "field survey" is broad enough that it need not always involve any particular scope of sub-surface testing. At any given site, a visual overview or very limited digging (sometimes referred to as a "Phase IA survey" or "Modified Phase I survey") may be sufficient to evaluate whether archeological properties are likely to be present. The NPA provides that a State Historic Preservation Officer (SHPO) has authority, consistent with relevant tribal or state procedures, to designate geographic areas in which either no NPA review is required or where an archeological field survey would be inappropriate. For example, a SHPO may determine that a field survey is unnecessary on paved ground in a highly developed area or in other circumstances in which the likelihood of direct effect on archeological resources is remote.
Utility Rights-of-Way and Commercial Industrial Exclusions
Even if a tower project falls within the exclusions for towers located in industrial/commercial locations or utility rights-of-way, applicants must still complete the Indian tribe consultation process. If, as a result of this process, the applicant identifies a historic property that may be affected, the applicant must complete full NPA review notwithstanding the exclusion.
Indian Tribe Consultation and Confidentiality
Licensees must consult with Indian tribes to identify historic properties within the Area of Potential Effects (APE) for visual effects. There is no requirement to hire a professional or perform a field survey when consulting with tribes unless it is appropriate to do so in a particular case. While the industrial/commercial and utility right-of-way exemptions only require applicants to search relevant records for historic properties within very narrowly defined areas, tribes may identify potentially affected properties anywhere within the APE, which could be much more expansive. The proximity of such a property to the proposed facility would be an important factor if a tribe were to raise concerns as to effects on a historic property located outside the generally applicable "buffer zone" for either exclusion. If an Indian tribe requests confidentiality regarding information it discloses to an applicant, the applicant must request confidential treatment of such materials or information in accordance with the FCC's rules.
Only the FCC, the SHPO and the Advisory Council on Historic Preservation (if it chooses to participate) are required signatories to a Memorandum of Agreement (MOA) to resolve potential adverse effects caused by a tower project. Other consulting parties, such as members of the general public, Indian tribes or local governments are not required signatories to an MOA and are not empowered to control or veto any terms in an MOA.