WASHINGTON-A federal appeals court has ruled that the Federal Communications Commission has the authority to require wireless carriers and tower owners to abide by the National Historic Preservation Act, including accepting the definition of eligible properties.
The ruling by the U.S. Court of Appeals for the District of Columbia Circuit should mean that the cloud of uncertainty about whether the wireless industry was subject to the NHPA and the resulting nationwide-programmatic agreement is gone, said John Clark, outside counsel for the Tower Siting Policy Alliance. The wireless industry now can institutionalize compliance, Clark said.
The historic preservation act, passed in 1966, said the FCC must certify that historic areas are not harmed when a tower is placed on them by coordinating with preservationists. This is known as the Section 106 process. Since the FCC typically isn’t involved in siting and maintaining towers, it pushed the burden of compliance onto carriers and tower owners. CTIA disagreed and took the issue to court.
“We are disappointed. Today’s decision underscores the need for Congress to clarify the intended scope of Section 106 of NHPA, in particular the definition of properties that merely are `eligible’ for inclusion in the Register of Historic Places. Furthermore, we intend to redouble our efforts in making the nationwide-programmatic agreement a success and we ask the FCC, in light of this decision, to work with us to devote the resources needed to resolve siting disputes in order to facilitate the buildout of wireless facilities,” said Joseph Farren, CTIA director of public affairs.
Wireless industry players often butt heads with local historic-preservation authorities on what constitutes “harming” a historic site. Indeed, the factions have spent five years developing a nationwide-programmatic agreement-guidelines for siting towers in historically significant places that were intended to streamline the process.
PCIA, which represents the tower industry, said it hopes the decision will mean the process will be administered smoothly. “Today’s decision makes it critical for the FCC to continue to ensure that the Section 106 process operates in an efficient and reasonable manner,” said PCIA President Michael Fitch.
CTIA does not plan to appeal the decision, said Michael Altschul, CTIA senior vice president & general counsel.
