WASHINGTON-The Cellular Telecommunications and Internet Association last Friday filed a lawsuit in federal court claiming regulations aimed at historic preservation “favor intensive government oversight and unwieldy bureaucratic procedures.”
The lawsuit, filed in U.S. District Court for the District of Columbia, focuses on regulations recently promulgated by the federal Advisory Council on Historic Preservation. The ACHP rules aim to protect historic and culturally significant areas from being harmed when the federal government-or its designates, in this case wireless licensees-engage in activities that could harm those areas.
CTIA believes the rules go beyond what was intended by Congress. The ACHP is supposed to advise the Federal Communications Commission on ways to protect historic properties, not come up with rules and then mandate that the FCC follow them.
“We believe Congress meant for the ACHP to advise the FCC and then for the FCC to offer rules but what the ACHP has done is to draft rules which we believe is putting the cart before the horse,” said Michael Altschul, CTIA vice president and general counsel.
“In purporting to impose these and other requirements on federal agencies [ACHP] has not only greatly exceeded its statutory authority ‘to comment’ on undertakings … but has vastly and unlawfully expanded, lengthened and complicated the process to the serious detriment of all involved in that process, including CTIA’s members. … The final rule reverses the roles the [National Historic Preservation Act] assigned to federal agencies and [ACHP], respectively, and thus turns the congressional scheme on its head,” said CTIA in its complaint.
CTIA’s plan came to light last week just as the ACHP Telecommunications Users Group met to discuss the finalization of a nationwide programmatic agreement meant to streamline the collocation of wireless facilities in historic areas and the beginning of a comprehensive nationwide programmatic agreement for the siting of all facilities.
It was this timing that was questioned by the Personal Communications Industry Association since both CTIA and PCIA participate in the ACHP Telecommunications Users Group.
Filing a lawsuit at this time “would be playing with dynamite. There is a time and place for things and the time right now is for the discussions to continue,” said Rob Hoggarth, PCIA senior vice president for government relations.
Altschul said the two are not related and he stressed that CTIA continues to support the negotiations. Indeed, two representatives of CTIA attended last week’s meeting but did not publicly mention the lawsuit.
The lawsuit is indicative of the tenor of the negotiations that have occurred as the historic community and the wireless industry have tried to come together to figure out a way that wireless facilities can be sited while at the same time protecting historic and cultural resources.
“We are talking past each other. Collocation has been a real laboratory for what can go wrong,” said the ACHP’s Charlene Dwinn-Vaughan of a process that began last August. At that time, it was expected a collocation agreement would be completed in a short time. Instead it took months and in the end was put out for comment by the FCC further delaying it.
The FCC now is in the process of accepting comments from Native American tribes on the nationwide PA after the industry/general comment period closed last month. Tribes have until March 9 to file comments.
It is then hoped the FCC will have a final signed document ready for signature by the ACHP chairman during the ACHP quarterly meeting scheduled for March 16 in Little Rock, Ark.
FCC staff currently is working with the commissioners to figure out how to meet that goal, said Joel Taubenblatt of the FCC’s Wireless Telecommunications Bureau.
The collocation agreement would give amnesty to existing towers if no complaints had been received by the FCC and for towers and collocations on buildings or in areas that are not at least 45 years old. Collocations would be allowed on these structures without going through the historic-preservation process. Towers built after a certain date would need to go through a formal historic-review process, including consultations with state historic preservation officers and tribal historic preservation officers.
A historic-preservation review comes under Section 106 of the NHPA. New rules implementing Section 106 recently increased the number of steps from seven to 32. Section 106 rules require the FCC to sign off on any wireless facility because it allows for the transmission using a federal wireless license.
Once the collocation PA is signed, the next step is written implementation guidance.
“This has been a long exercise. We will believe it is over when it is over. [Once the PA is signed the] FCC needs to provide guidance or we will be very disappointed because it will not get us where we thought we were going. … We need it in writing,” said Dwinn-Vaughan. The guidance, which must be vetted by the ACHP and the National Council of State Historic Preservation Officers, should be out by April 1, she added.
The collocation PA is expected to be an interim step before the FCC, the ACHP and the wireless industry develop a nationwide comprehensive PA on the siting of wireless facilities in historic areas.
At last week’s meeting a 12-step process was established for the development of the comprehensive PA. The process calls for the FCC to take control of the development of the comprehensive PA with input from the ACHP, NCSHPO and the wireless industry.
“The FCC is in the driver’s seat but not to be left to our own devices,” said Taubenblatt.
It is still unclear how long the 12 steps will take but PCIA urged that it be completed by Oct. 1.
“Our work will expand given to the time allowed,” said John Clark, PCIA’s outside counsel on tower-siting issues.
