WASHINGTON-The wireless industry could get an answer from an appeals court on whether the Federal Communications Commission can regulate tower sitings with an eye toward historic preservation and environmental protection, but the answer could slow down an already turtle’s-pace process.
Comments from the bench during oral arguments before U.S. Court of Appeals for the District of Columbia Circuit suggest the court could tell the FCC that it can only comply with the National Historic Preservation Act and the National Environmental Policy Act if it goes back to site licensing for wireless facilities.
The FCC used to license each site for wireless service, but under a congressional directive to streamline the process, it dropped site licensing.
The consequence of ignoring NHPA and NEPA when engaging in geographic licensing could mean “there will be towers everywhere,” said Judge Merrick Garland.
The FCC believes that since it permits use on a certain frequency and a site is necessary for services at that frequency, it can condition the license on the site complying with NHPA and NEPA regulations.
“There is nothing that says the FCC can regulate for historic preservation or environmental impacts,” argued Donald Verrilli for the industry.
“Clearly when the FCC granted the geographic license, it is required to take NHPA and NEPA into account,” said Judge David Tatel.
The industry is challenging implementing rules for a Nationwide Programmatic Agreement for siting wireless-communications facilities in historic areas. 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, since the FCC is undertaking the construction and use of the tower, it 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 towers, it delegated its authority to carriers and required them to comply with the NHPA.
While the implications of the D.C. Circuit ruling in CTIA vs. FCC are big, it is possible the court could punt on the issue. Garland started the day questioning why the D.C. Circuit was being asked to examine an issue that dates back to 1990. Verrilli said the commission had reopened the issue of whether it had jurisdiction over communications sites when it developed the NPA implementing rules.
“It is obvious that it was discussed at length because two commissioners dissented,” Verrilli said. One of those two commissioners is now the FCC chairman. FCC Chairman Kevin Martin even tried to reconsider the implementing rules earlier this year but his Democratic colleagues rebuffed him.
“The FCC wanted to get this issue decided and perhaps it’s wrong to overlook the jurisdictional issue,” said C. Gray Pash, an FCC attorney, but “I would not want this court to think this was a reopening of the issue.”
Garland was not convinced and asked both sides to file supplemental briefs this week.
Although Garland’s jurisdictional issue seemed to take everyone by surprise, Michael Altschul, CTIA general counsel, said “these panels often look for reasons to dispose of cases.”
Sending the issue back to the FCC under a chairman who dissented on the rules in question could be seen as positive for the industry, but Altschul said it would be inefficient.
“The chairman gets to control the agenda but not the outcome. The additional year of uncertainty underscores the desire to get this decided now,” said Altschul. RCR
