Before the Federal Communications Commission Washington, D



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III.discussion


  1. In reviewing Applications for Review of Bureau decisions, the Commission assesses whether (1) the action conflicts with statute, regulation, case precedent, or established policy; (2) the action involves a previously unresolved question of law or policy; (3) the application of existing precedent should be overturned; (4) an erroneous finding as to an important or material question of fact has occurred; or (5) there has been prejudicial procedural error.32

  2. The issues germane to our review in this particular case are straightforward. First, we assess whether the Order held correctly that the Section 106 review process may be reopened by the Commission upon discovery of a material error or omission in the applicant’s submission, even after the SHPO has reached a determination. Second, if that holding is correct, we assess whether the Order found correctly that Wireless Properties’ failure to identify the Bragg Reservation constituted a material error or omission warranting reopening of the Section 106 process.

  3. After a careful review of the record, we affirm the Order in all respects. We hold that Section XI of the NPA permits the Commission to reopen the Section 106 process when the applicant submits materials that are inconsistent with the NPA and thereby precludes the SHPO’s effective review. The Commission, however, will only reopen a final SHPO approval if there is a material error or omission by the applicant. We also find that Wireless Properties’ failure to identify the Bragg Reservation was a material error or omission that undermined the ability of the Tennessee SHPO, the NPS, and the public to understand and evaluate the potential effects of the proposed tower on historic properties and rendered the Section 106 review process incomplete, and that the Section 106 review may be reopened to correct the effects of such error or omission in the event that the Commission finds a material error or omission in the applicant’s submission to the SHPO.

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


  1. Pleadings. In its Application for Review and Reply, Wireless Properties asks the Commission to reverse the Order because the Tennessee SHPO’s original determination was final and nothing in the NPA or the NHPA authorizes the Commission to reopen the Section 106 process. Wireless Properties bases its contention on Section VII of the NPA, which identifies processes and timelines that, Wireless Properties contends, reflect an intention to provide certainty and finality within identified and specific timeframes.33 According to Wireless Properties, neither Section XI of the NPA,34 on which the Order relies, nor Section 800.13(b) of the Advisory Council’s rules,35 which the Order also cites, provides authority to reopen the Section 106 process.36 In addition, Wireless Properties argues, the Order violated its due process rights by effectively authorizing the Tennessee SHPO to abrogate its license without affording it an opportunity to be heard.37

  2. Parties opposing the Application for Review assert that Section XI of the NPA permits the Commission to reopen a Section 106 proceeding after a SHPO has concurred with an applicant’s finding of no adverse effect on historic properties where the Submission Packet provided to the SHPO contained a material error or omission.38 The National Trust further contends that the Commission may rely on Section 800.13(b) of the rules of the Advisory Council.39

  3. Decision. Section XI of the NPA provides in relevant part: “Any member of the public may notify the Commission of concerns it has regarding the application of this Nationwide Agreement within a State or with regard to the review of individual Undertakings covered or excluded under the terms of this Agreement….The Commission will consider public comments and following consultation with the SHPO/THPO, potentially affected Indian tribes and NHOs, or Council, where appropriate, take appropriate actions.” The Division’s Order reopening the Section 106 process, in response to a request that specifically invoked Section XI as well as community groups’ expressed concerns regarding defects in the earlier review,40 was an appropriate action in this case under Section XI. We reject Wireless Properties’ argument that the Order impermissibly undermined the finality and certainty accorded under the NPA by invoking Section XI to invalidate a SHPO determination that was based on material misinformation submitted by the applicant. To the contrary, and consistent with the Division, we hold that Section XI of the NPA allows the Commission to reopen the Section 106 process where there has been a material error or omission in the information submitted by the applicant—even if the error or omission comes to light after the SHPO has concurred with an applicant’s finding of no adverse effect.41

  4. Applicants, Not SHPOs, Bear the Burden of Ensuring that Submissions are Complete. Wireless Properties contends that under the NPA, any alleged deficiencies in a submission may be addressed and corrected only before the process is complete, and that this is the “only regulatory framework in which to detect or challenge deficiencies.”42 In particular, it argues, Sections VI.D.1.c.i and VII.A.4 give the SHPO 30 days to review the Form 620 in order to, among other things, identify additional historic properties within the APE.43 In this case, Wireless Properties argues, not only did the Tennessee SHPO fail to note the omission of the Bragg Reservation within the 30-day period, but it affirmatively concurred with Wireless Properties’ finding of no adverse effect, thereby concluding the review under Section VII.C.1.44 Accordingly, Wireless Properties contends, by the terms of the NPA the Tennessee SHPO cannot now raise the failure to include this historic property on the Form 620, and the Order’s holding that the incomplete submission rendered the Tennessee SHPO’s review invalid is incorrect as a matter of law.45

  5. Wireless Properties’ argument misunderstands the roles of the applicant and the SHPO under the NPA. Read as a whole, the NPA, and particularly Sections VI.A and VI.D.1, places the burden solely on the applicant to supply the information necessary for the Section 106 review.46 We agree with commenters opposing the Application for Review47 that Wireless Properties’ reading would impermissibly shift this burden to the SHPO, contrary to the NPA and the statute.48 While Section VI.D.1.c.i. of the NPA states that the SHPO “may” identify additional properties within the APE during the review period, and Section VII.A.4 provides that the SHPO “will immediately notify” the applicant if it identifies additional historic properties within the APE or if it determines that the applicant’s submission is inadequate, the purpose of these provisions is to afford the SHPO an opportunity to identify additional historic properties already within its inventory that it considers eligible but that were not available to the applicant within the publicly available records that it was required to review.49 And, as the Order found, there was nothing on the face of Wireless Properties’ submission that would have alerted the SHPO to the existence of the undisclosed property.50 Nothing in the NPA, including the provisions discussed above, requires the SHPO to identify and correct any omissions or otherwise assume the applicant’s burden to ensure the filing is complete and accurate. Otherwise, applicants could simply rely on the SHPO to identify any potentially affected properties. This would eviscerate the applicant’s obligation and incentive to prepare a meaningful submission and would undermine the purpose of assigning that obligation to the applicant. Shifting that burden to the SHPO would likely delay, rather than expedite, reviews under Section 106 —an approach that is completely at odds with the NPA.

  6. The NPA Affords the Commission Discretion to Reopen the Process in the Event of Material Errors or Omissions. Having found that the NPA places the burden on the applicant to identify all properties within the APE for visual effects that are listed in the National Register or identified as eligible for listing within the specified sources, it follows that a review based upon a materially incomplete submission is invalid. The purpose of the Submission Packet provided to the SHPO and the consulting parties is to “facilitate review of the applicant’s findings and any determinations with regard to the potential impact of the proposed undertaking on historic properties.”51 Its preparation requires that the applicant define the APE, identify historic properties within the APE, evaluate the historical significance of the identified properties, and assess the effects of the undertaking on those historic properties.52 Without the requisite information, the SHPO cannot make a reasoned analysis of the applicant’s proposed effect finding, and its decision, which would ordinarily complete the Section 106 process under the terms of the NPA,53 cannot constitute the meaningful review contemplated by Section 106. We are guided by the statute in concluding that, under the NPA, the validity and finality of the SHPO’s decision is necessarily predicated on applicant’s submission, prepared as specified in the NPA, 54 being sufficiently complete and accurate to facilitate a reasoned determination as to the effects of the proposed undertaking on historic properties.

  7. Section XI of the NPA provides the vehicle for the Commission, consistent with its responsibility under Section 106 to consider the effects of its undertakings on historic properties,55 to invalidate a review that it finds to have contained a material error or omission. Section XI authorizes the staff to take actions, where appropriate, in response to public comments and objections regarding the application of the NPA or the review of individual undertakings covered by the NPA.56 As the Advisory Council observes, ultimate legal responsibility for FCC-related undertakings lies with the FCC, not the SHPO.57 Therefore, the Advisory Council supports the Order’s analysis of the NPA and concurs that the Commission may reopen the process under Section XI.58 The National Trust supports the Advisory Council’s interpretation. According to the National Trust—which notes that it was a “direct and active participant in the development” of the NPA and that it provides its viewpoint based on “years of consultation that led to the language of the [NPA]”—Section XI was designed to afford the FCC broad and flexible discretion to address a wide variety of procedural issues and other concerns that might undermine the assessment of effects on historic properties.59

  8. Wireless Properties argues that the Division’s Order improperly infers an open-ended authority, unstated in the NPA or the statute, under which Section 106 approval could be revoked without notice, without an identifiable process, and in perpetuity.60 In adopting the NPA, however, the Commission specifically rejected as infeasible and potentially arbitrary a proposal to include a strict time limit for public comments and objections.61 Thus, the broad language of Section XI recognizes the Commission’s need for flexibility to ensure that it complies with its statutory obligations under Section 106.62 Furthermore, our interpretation does not create an open-ended, standardless opportunity to reopen a complete review. Rather, we balance the need for flexibility to achieve the purposes of the NHPA with the interest in finality and certainty by asserting authority to reopen an apparently final Section 106 review only in circumstances where the review was tainted by the applicant’s material error or omission.

  9. Moreover, our exercise of this authority is consistent with Section 106 of the NHPA, its legislative history, and the Advisory Council’s implementing regulations that govern historic preservation reviews of federal undertakings. Section 800.13(b) of the Advisory Council’s rules supports the proposition that a federal agency has the obligation to consider unanticipated effects on historic properties that are discovered after completion of review.63 As noted above, the Advisory Council, which Congress has directed to oversee agency implementation of the NHPA, supports our interpretation of Section XI as consistent with the statute. Therefore, we conclude that under Section XI, the Commission has the authority, in its discretion, to take remedial action where there is a material error or omission in the applicant’s submission that is identified after the SHPO review.64

  10. Our conclusion that reopening an apparently final SHPO determination -- only where there is a material error or omission by the applicant -- is an appropriate action authorized in Section XI advances certainty and finality as embodied in the NPA’s procedures and timelines.65 For the reasons explained above, the finality of the SHPO’s determination, and hence the certainty that its finding completes the Section 106 process, is predicated on the applicant having submitted a substantially complete and materially correct Submission Packet that informs and facilitates SHPO review. A failure to comply with the foundational Submission Packet preparation requirements specified in the NPA,66 to the extent that it precludes meaningful Section 106 review, vitiates the SHPO’s determination and warrants reopening that determination. Wireless Properties’ reading of the NPA, under which the SHPO’s decision is final and the Section 106 process is complete in all circumstances, would undermine the integrity of the review process established by the NPA. Applicants would have little incentive diligently to prepare accurate and materially complete submissions that facilitate expeditious, legally sufficient SHPO review. Instead, they would be rewarded for making inaccurate and incomplete submissions, thereby undermining fulfillment of the Commission’s statutory obligation to safeguard historical and cultural values through the NPA’s streamlined process.67 As the National Trust notes, under Wireless Properties’ interpretation, “no determination regarding adverse effects could be revisited once the 30-day review period has expired, regardless of how egregious or intentional the applicant’s failure to disclose information.”68 We emphasize, however, that only a material error or omission that precludes effective review of the potential effects of the proposed tower on historic properties will invalidate the SHPO’s determination and justify reopening the Section 106 process by the Commission. Absent such an error, the SHPO’s approval is final and not reviewable by the Commission. An insignificant or ministerial error or omission, discovered after the fact, which does not undermine the validity of the earlier review, will not ordinarily warrant reopening the Section 106 proceeding.69 We explain below that the failure to disclose the Bragg Reservation in Wireless Properties’ Submission Packet was a material error or omission.70

  11. Reopening the Section 106 Process Does Not Rescind a Previously Granted License. We reject Wireless Properties’ assertion that the Order unlawfully authorized the Tennessee SHPO to abrogate what amounted to a construction license on which Wireless Properties had relied to its financial detriment.71 This argument improperly assumes that the SHPO’s original determination of no adverse effect is final in all circumstances. As explained above, the NPA affords the Commission discretion to reopen an apparently complete review process to ensure that it complies with its statutory obligations under Section 106. More importantly, the Tennessee SHPO’s initial finding did not authorize construction or constitute a license within the meaning of the Administrative Procedure Act,72 and its withdrawal, based on material errors or omissions in the Submission Packet, did not foreclose construction of a compliant tower upon successful completion of the reopened Section 106 process. The FCC implements its responsibilities under Section 106 by requiring that applicants complete all environmental processing prior to the initiation of construction.73 Even in those instances in which completion of the Section 106 process does not require a Commission decision,74 the agency’s environmental procedures, rather than any SHPO action, determine when construction may begin under the NPA. The Tennessee SHPO’s December 2006 withdrawal of its original finding of no adverse effect, based upon the subsequent discovery of a significant undisclosed historic property within the APE, did not terminate any opportunity under the Commission’s procedures for the applicant to construct, or otherwise revoke what amounts to a construction license. It afforded Wireless Properties the opportunity to submit additional information to demonstrate that, as it had claimed originally, the proposed tower would have no adverse effects on historic properties. Reinstatement of the no adverse effect finding, based on review of a revised, materially complete Submission Packet, would satisfy the review requirements set forth in the Commission’s rules with respect to effects on historic properties.75 The Division’s Order reopening the Section 106 process merely suspended the opportunity to construct consistent with these procedures pending completion of the Section 106 process.

  12. Wireless Properties relies on Blackwell College of Business v. Attorney General of the United States,76 in which the court reversed a decision by the Immigration and Naturalization Service (INS) withdrawing a college’s status as an approved school for nonimmigrant alien students. The court reasoned that the college’s approved status was a valuable asset in the nature of a license, entitling the school to due process protections under the APA.77 Wireless Properties claims that the Tennessee SHPO’s reversal of its March 2006 no adverse effect finding deprived it of due process insofar as the Tennessee SHPO did not indicate whether it had investigated the merits underlying the reversal or assessed whether the NPA’s procedures permit such reversal.78 The actions of the INS and the Tennessee SHPO are not analogous, however. The INS initiated an enforcement proceeding to terminate the college’s right to admit nonimmigrant alien students without affording the school the requisite APA due process in that proceeding.79 By contrast, the Tennessee SHPO’s rescission of its original no adverse effect finding did not deprive Wireless Properties of construction authority or any other valuable asset in the nature of the license so as to implicate due process concerns. Moreover, the Division’s Order directing Wireless Properties to resubmit to the Tennessee SHPO its Section 106 submission with the properly identified and evaluated Bragg Reservation affords Wireless Properties the due process required under the APA and Blackwell as it can fully participate in the ongoing proceeding and demonstrate that the original no adverse effect finding was warranted.
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