WASHINGTON-The Personal Communications Industry Association plans to file documents this week asking a federal court to allow it to join in a lawsuit that could have a substantial impact on antenna sitings near historic properties.
The lawsuit goes to the heart of the process carriers and tower owners must go through to site a facility on or near historic properties. The process is found in rules of the Advisory Council on Historic Preservation. These rules became effective June 17, 1999.
The rules require the Federal Communications Commission to sign off on all proposed sites and the ACHP has rejected a proposal from the FCC to delegate to licensees the determination of whether a site will harm a historical area.
The end result is a process where historical considerations can pop up after a site has seemingly been approved at the local level, said Brian Fontes, senior vice president for policy and administration for the Cellular Telecommunications Industry Association.
On Feb. 15, the National Association of Mining filed a lawsuit against the council saying the process in which the rules were developed was illegal because two members of the council voted for them notwithstanding that these two members are not allowed to vote on such items.
In a surprising move, the advisory council admitted last month that indeed the process in which the rules were adopted was flawed. The advisory council said it would re-offer the rules for public comment but asked the court to allow the rules to remain in effect until the new rules can be adopted.
PCIA plans to oppose this move.
“The bottom line is they [the advisory council] admit they made a mistake and the rules are illegal … The fact that they are trying to Band-Aid the rules should not sway the court to keep them in place,” said Rob Hoggarth, PCIA senior vice president for government relations.
A major concern of the wireless industry is the time it will take to develop the new rules. The last time the advisory council undertook a revision of the rules governing the process federal agencies must undertake to approve actions that may impact historic properties, it took nearly five years before the rules were finally ready.
“For the life of me I don’t see how they plan to do a rule making in six months particularly with the number of players involved,” said Andrea D. Williams, CTIA assistant general counsel.
It is not as though there would not be a process in place for wireless carriers to protect historic properties, PCIA is expected to tell the court.
PCIA will bring to the court “the perspective of the wireless industry. It is not a tragedy if these rules are not in place for a while because the FCC has a process in place … The industry will continue to abide by the FCC rules,” said Hoggarth.
This contradicts what the advisory council told the court in June when it opposed a NMA move to throw out the rules.
“Vacating the current rule would disrupt the federal agencies and consideration of actions that affect historic properties … According to National Park Service statistics compiled from the State Historic Preservation Officer reports, [the] regulations were applied to 95,419 agency undertakings during fiscal year 1999. Based on the [park service] statistics for [FY 99], approximately 40,000 projects requiring review would occur during the five-month rule making period. Without the current regulations, there would be no framework in place … This would result in confusion … The result could be that agencies will simply not consider effects of their actions on historic resources,” said the Department of Justice. The Justice Department acts as the ACHP’s lawyer in the NMA lawsuit.
The advisory council officially proposed the new rules last week with comments due Aug. 10 but there is nothing new about the rules. It is simply a reprinting of the rules that went into effect in 1999.
While the litigation and rule making processes continue, PCIA said it expects to work with the FCC, the state historic preservation officers and the advisory council to come up with a template for agreements. CTIA is also working along these lines and hopes some sort of document similar to what was signed with proponents of scenic trails can be developed.
In October 1999, the wireless industry and environmental organizations signed an agreement that set out a process that strived to protect scenic trails.
