Before the Federal Communications Commission Washington, D



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Federal Communications Commission FCC 15-91


Before the

Federal Communications Commission

Washington, D.C. 20554



In the Matter of
Wireless Properties, LLC

Application for Review


Proposed Tower, Missionary Ridge

Chattanooga, Tennessee




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ORDER
Adopted: July 16, 2015 Released: July 21, 2015


    By the Commission: Commissioner Pai issuing separate statement.

Table of Contents

Heading Paragraph #

I. Introduction 1

II. Background 2

III. discussion 12

A. The Commission’s Authority to Reopen the Section 106 Process 15

B. Wireless Properties’ Failure to Identify the Bragg Reservation in its Submission Packet 27

IV. conclusion 32



V. ordering clauses 33


I.Introduction


  1. With this Order, we deny an Application for Review filed by Wireless Properties, LLC (Wireless Properties)1 and affirm in all respects the underlying Order released by the Spectrum and Competition and Policy Division (Division) of the Wireless Telecommunications Bureau.2 In the Order, the Division denied Wireless Properties’ Petition for Expedited Declaratory Ruling (Petition), which sought a determination that the National Historic Preservation Act (NHPA) Section 1063 review for a proposed communications tower had been completed. For the reasons the Division articulated in its Order and those set forth below, we hold that the Section 106 review is not complete because Wireless Properties failed to identify all of the listed or determined eligible historic properties within the proposed tower’s Area of Potential Effects (APE). Although the Tennessee Historical Commission (Tennessee SHPO), which is the State Historic Preservation Officer (SHPO) for Tennessee under the NHPA,4 had concurred with the Applicant’s determination that the proposed tower would have no adverse effect, that determination was based on Wireless Properties’ materially incomplete submission. Like the Division, we find that the original Tennessee SHPO determination, based on erroneous information, does not complete the Section 106 process, and we therefore affirm the Order and deny the Application for Review.

II.Background


  1. Although there are a number of contested issues in this proceeding, the facts necessary to our analysis and conclusion are undisputed. Wireless Properties proposes to construct a 150-foot monopole in Chattanooga, Tennessee. The tower would be located within 1,000 feet of the Bragg Reservation, a unit of the Chickamauga and Chattanooga National Military Park (National Park). The Bragg Reservation is therefore within the Area of Potential Effects (APE) of the proposed tower because, as detailed in the Nationwide Programmatic Agreement (NPA) that governs the Commission’s reviews of wireless infrastructure under Section 106,5 it is within a half mile of the proposed installation.6 The National Park, of which the Bragg Reservation is a part, is listed on the National Register of Historic Places (National Register).7 Under the Commission’s rules and the NPA, except for excluded undertakings, the party responsible for Section 106 review must, prior to construction, affirmatively identify properties in the APE that are listed or eligible for listing in the National Register, and evaluate whether the proposed construction would affect or adversely affect any of those properties.8 The NPA governs the process for making this determination, including specifying records that shall be used.9

  2. In connection with the proposed tower, Wireless Properties filed an FCC Form 620 and an accompanying Submission Packet with the Tennessee SHPO, as the NPA process requires.10 In those materials, Wireless Properties stated that a 180-foot monopole at the proposed location would have no adverse visual effects on historic properties in the APE.11 In support of that proposed finding, Wireless Properties identified two National Register-listed properties, the Missionary Ridge Historic District and Founders Home at the McCallie School, located within one-half mile of the proposed tower site and thus within the APE for visual effects, but it did not disclose the location of the Bragg Reservation within the APE or consider any visual effects the tower would have on it. The Submission Packet also included a cultural resources assessment, prepared by a cultural resources specialist, which concluded that the proposed tower would have no adverse effect on historic properties but failed to list the Bragg Reservation among the historic properties in the APE.12 An accompanying letter from Paul Archambault, a historic preservation planner representing the Chattanooga Area Regional Council of Governments, also concluded that the tower would not adversely affect historic properties but did not list the properties that he took into consideration.13

  3. Based on its review of the FCC Form 620 and accompanying materials, the Tennessee SHPO informed Wireless Properties in March 2006 that it concurred with the applicant’s finding of no adverse effect.14 In December of that year, Mr. Archambault sent a letter to the Tennessee SHPO reversing his previous advice that the proposed tower would have no adverse effect on historic properties.15 He explained that the proposed tower would adversely affect the Bragg Reservation and the Missionary Ridge Historic District and recommended that the applicant find an alternative site. He attributed his earlier conclusion of “no adverse effect” to his lack of familiarity with the area and inexperience in the job.16 The Tennessee SHPO notified Wireless Properties three days later that it was reopening its review of the project, rescinding its earlier finding of no adverse effect, and concluding that the project would have an adverse effect on historic properties.17

  4. After receiving the notice from the Tennessee SHPO, Wireless Properties contacted Division staff by telephone in early 2007, requesting that the Division inform the Tennessee SHPO that it had no authority to reopen its review of this matter. Division staff then spoke with representatives of the Tennessee SHPO and National Park Service (NPS) to gather additional background information, and on February 22, 2007, the Division sent Wireless Properties a letter requesting information regarding its compliance with NPA procedures for assessing visual effects.18

  5. On April 24, 2007, the Advisory Council on Historic Preservation (Advisory Council), which bears responsibility for overseeing Federal agencies’ administration of the NHPA, advised the Division in writing that it had learned of “unresolved procedural issues” regarding the Section 106 review of Wireless Properties’ proposed tower.19 The Advisory Council specifically referenced, among other things, concerns about the content of the FCC Form 620 that Wireless Properties had submitted to the Tennessee SHPO. The Advisory Council stated that the proposed tower would adversely affect the Bragg Reservation, and it reserved the right to formally participate in consultation regarding the tower pending further developments.20

  6. Petition for Expedited Declaratory Ruling. On April 25, 2007, Wireless Properties filed the Petition, in which it sought a declaratory ruling that the Section 106 review was complete as a matter of law and could not be reopened. It contended that it had complied with all procedural requirements set forth in the NPA and that the Tennessee SHPO’s finding of “no adverse effect” was therefore final and could not be reopened without violating due process. Wireless Properties also argued that, even if the review were reopened, the proposed tower would have no adverse effect because the area already contains several modern intrusions.21

  7. On the same day that Wireless Properties filed the Petition, the Missionary Ridge Neighborhood Association (Neighborhood Association) and the Friends of Chickamauga & Chattanooga National Military Park (Friends of the National Park) filed a letter with the Commission asking it to overturn the Tennessee SHPO’s original finding of no adverse effect because of a “significant procedural defect” in Wireless Properties’ FCC Form 620. Specifically, they argued that the Section 106 review was defective because Wireless Properties did not list the Bragg Reservation as a historic resource.22 On May 15, 2007, the National Trust for Historic Preservation (National Trust) submitted a letter asking the Commission to reopen the Section 106 review due to the discovery of an unanticipated effect on a historic property, consistent with Section XI of the NPA23 and Section 800.13(b) of the Advisory Council’s rules.24

  8. The Division Order. On May 24, 2007, the Division released its Order denying Wireless Properties’ Petition. The Order held that the Section 106 review had not been completed in accordance with the requirements of the NPA and that the review process should therefore resume. The Division rejected the argument that a Section 106 process can never be reopened and held that finality is predicated upon the applicant’s compliance with the foundational steps of the review process.25 The Division explained that reopening the review was appropriate in this case because Wireless Properties had omitted material information from its FCC Form 620 by failing to identify the Bragg Reservation.26 The Division noted that it was reasonable for the Tennessee SHPO to assume that the applicant had supplied a complete roster of properties as required.27 The Division therefore found that the Section 106 process should be reopened, holding that the NPA affords the Commission discretion to take action where an applicant’s submission fails to comply with applicable requirements “in a manner that preclude[s] the SHPO’s effective review.”28

  9. The Order did not make a finding as to whether the proposed tower would have adverse effects on historic properties. Rather, the Order held that to complete the review, Wireless Properties should submit to the Tennessee SHPO a revised FCC Form 620 that described effects on the Bragg Reservation and other historic properties as required by the NPA.29

  10. Wireless Properties’ Application for Review. In its Application for Review, Wireless Properties largely reiterates the arguments it made in its Petition. Wireless Properties asks the Commission to reverse the Order and hold that the underlying Section 106 process was complete and final. Ten entities filed oppositions to the Application for Review,30 and none filed in support. Wireless Properties filed a reply.31
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