WASHINGTON-As expected, CTIA has told a federal appeals court it wants it to throw out the nationwide programmatic agreement recently entered into by the Federal Communications Commission, the federal Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers.
“CTIA challenges the FCC’s conclusion that construction of a wireless communications tower is a federal undertaking under the National Historic Preservation Act, as well as the commission’s requirements regarding the treatment of properties that are ‘potentially eligible’ for inclusion on the National Register of Historic Places,” said CTIA.
Within the next couple of months, CTIA is expected to file a brief explaining its reasons for asking that the rules be thrown out. Because CTIA chose to appeal the rules, it cannot ask the FCC to reconsider its decision, said John Walls, CTIA vice president of public affairs.
The purpose of the NPA was to streamline tower sitings in historic areas.
Under the NPA, a tower is a federal project, thus making it subject to the rules regarding historic preservation. According to the NHPA, as the federal agency that is undertaking the construction and use of the tower, the FCC must certify, by working with state and federal authorities, that historic areas are not harmed by the tower.
Because the FCC has not typically involved itself in building and maintaining mobile-phone towers, it delegated its authority to carriers and required them to comply with the NHPA.
Carriers then complained that the process of dealing with state and federal authorities was long and arduous.
The NPA is a follow-up to a similar programmatic agreement signed in March 2001 for colocations.
The wireless industry and the historic-preservation community started negotiating tower sitings in 2000 with the hope of establishing an NPA in a year. It took more than a year to complete the interim agreement on colocations and another three years to complete the final agreement.
The NPA describes standards for identifying historic properties, establishes enforceable deadlines for state historic preservation offices and FCC review, and excludes certain constructions from review. These exclusions include enhancements to existing towers, temporary towers and some towers on industrial and commercial properties or in utility corridor rights of way.
When the rules were adopted, FCC Commissioners Kathleen Abernathy and Kevin Martin offered partial dissents, agreeing with industry on a long-held belief that wireless facilities are not federal undertakings like dams and roads and are therefore not subject to historic-preservation review.
