United States: FCC Adopts new Procedures for Review of Effects of Communications Towers on Historic Properties

On March 7, 2005, new procedures went into effect in the U.S. to ensure that new communications towers will not have an adverse effect on historic properties. These new procedures have generated significant concern among license applicants because they require applicants to give much closer scrutiny to proposed antenna sites than in the past. Instead of merely assuming there are no historic properties in the area, applicants will be required to take affirmative steps to confirm that the construction will not have an adverse visual or physical effect on historic properties.

The "Nationwide Programmatic Agreement for Review of Effects on Historic Properties" (NPA) was approved by the U.S. Federal Communications Commission (FCC), the Advisory Council on Historic Preservation (Council) and the National Conference of State Historical Preservation Officers, and it is intended to streamline the review of proposed communications facilities under Section 106 of the National Historic Preservation Act (NHPA). Any applicant proposing to construct a new communications tower or collocate an antenna on an existing tower, regardless of whether it is associated with a site-based or geographic license, must carefully review the NPA to determine whether the project should be submitted for review.

The NPA only applies to the review of effects on "historic properties" defined as any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places. Generally, if a tower project falls within one of the following categories, it does not have to be submitted for review under the NPA:

• Enhancements where the tower was built prior to March 16, 2001 or was previously reviewed for environmental impact by the FCC, as long as it does not involve a substantial increase in height, width or involve ground excavation outside the current site

• Replacement towers that do not involve a substantial increase in size and that are built within 30 feet of the existing site boundaries, as long as the tower being replaced was built prior to March 16, 2001 or has been previously reviewed for environmental impact

• Temporary facilities, as long as any excavation at the site is minimal

• Facilities less than 200 feet in overall height located in an industrial park, commercial strip mall or shopping center that occupy a minimum land area and are not within 500 feet of a historic property

• Facilities within 50 feet of a government-designated right-of-way for communications towers or above-ground utility lines, as long as they do not constitute a substantial increase in size over existing structures in the vicinity of the proposed tower

• Facilities in any area designated by the state historical preservation officer (SHPO) or tribal historic preservation officer (THPO), at their discretion, as having limited potential to affect historic properties

The applicant must identify and evaluate the potential effect of a tower project on historic properties within the "area of potential effects" (APE) for both visual and physical effects.

For visual effects, the applicant must identify historic properties within one-half to one-and-one-half miles depending on the height of the proposed tower. Applicants should review relevant public records, such as the National Register of Historic Places and lists of properties under consideration for such designation, to determine which properties might be impacted by the visual effect of the tower. If there are historic properties within the area for visual effects, the applicant must consult with a qualified expert to evaluate whether the project will have an adverse visual effect on such properties.

For physical effects on historic properties, applicants must also consult with a qualified expert to identify historic properties within the area for physical effects, including the area of potential ground disturbance and the portion of any historic property that could be physically altered by the project. The applicant is normally required to conduct an archeological field survey unless a qualified expert determines that the ground disturbance will be minimal or will be unlikely to disturb cultural artifacts.

The applicant must give written notice of the proposed tower project and instructions on how to submit comments as part of the official record. Applicants must use good faith efforts to contact any Indian tribe that may attach religious and cultural significance to historic properties that may be affected by the tower project. If the applicant does not have a pre-existing relationship with the relevant Indian tribe, the applicant is required to use the FCC’s electronic Tower Construction Notification System (TCNS).

If an Indian tribe or Native Hawaiian organization (NHO) indicates that a historic property may be affected, then the applicant should invite it to become a consulting party. Even if a tower project is excluded from review under the exemption for industrial/commercial locations or communications/utility rights-of-way, applicants are still required to consult with Indian tribes.

The NPA requires applicants to submit new FCC forms to the relevant SHPO/THPO and any consulting parties before construction or other installation activities on the site begin. The SHPO/THPO will typically have 30 days to respond to the applicant’s determination as to potential effects on historic properties. If the SHPO/THPO does not respond in 30 days but the applicant has concluded that there will not be an adverse effect, the FCC must still review the matter before construction can begin. If the applicant determines, or if the FCC concludes, that there will be an adverse effect on historic properties, the applicant must submit a plan designed to avoid, minimize or mitigate the adverse effect.

Although the NPA is intended to streamline the historic review process, it also establishes very specific and complex procedures for historic review. Failure to adhere to these procedures exposes an FCC licensee to sanctions for violations of the Communications Act and the FCC’s rules, including fines, forfeiture or even, in extreme circumstances, license revocation.

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