Before the Federal Communications Commission Washington, D



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


  1. Having found that we have authority under the NPA to reopen a Section 106 proceeding due to a material error or omission in the application, we now turn to whether Wireless Properties’ failure to identify the Bragg Reservation was a material error or omission. We affirm the Order’s finding that it was.

  1. Pleadings. According to Wireless Properties, even assuming that the Commission can lawfully reopen the Section 106 process, the Order erred in finding that Wireless Properties’ submission was incomplete due to its admitted failure to identify the Bragg Reservation.80 Wireless Properties contends that it was not required to identify the Bragg Reservation because it is not listed on the National Register, noting that the Order refers to National Register listings that include the National Park but do not separately identify the Bragg Reservation itself. Wireless Properties argues that it failed to identify the Bragg Reservation as a historic property based on the National Park listing because “the main part of the Park lies well outside the APE and [Wireless Properties’] consultants, based on maps provided by the SHPO’s office, … were unaware at the time of the relationship between Bragg Reservation” and the National Park.81 Further, Wireless Properties asserts that its failure to identify and analyze the Bragg Reservation did not render its submission incomplete because the Tennessee SHPO had “actual knowledge” of the existence and proximity of this property.82 In particular, Wireless Properties notes that it sent notice of its proposal to the National Park and included a copy of that notice in its submission,83 and it contends that the Tennessee SHPO acknowledged that it was aware of the Bragg Reservation and its proximity to the proposed tower site at the time of its initial review.84

  2. The commenters opposing Wireless Properties’ Application for Review emphasize the historic importance of the Bragg Reservation in particular and the National Park as a whole, and they support reopening the Section 106 process given Wireless Properties’ failure to identify either of them.85 The NPS explains that the Bragg Reservation was the site of a major Civil War battle and that the National Park, a unit composed of several non-contiguous land parcels located in what is now an urban setting, is the oldest and largest military park administered by the NPS.86 Thus, the NPS states, Wireless Properties’ consultants should have looked at the National Register and determined that the National Park included the Bragg Reservation.87 The Advisory Council and other commenters also dispute Wireless Properties’ claims that it was not required to identify the Bragg Reservation because it was not individually listed on the National Register or because the Tennessee SHPO allegedly knew of its existence.88 NPCA agrees that omitting the Bragg Reservation was a “substantive defect” in Wireless Properties’ submission that undermined the ability of the NPS and the public to understand the proposal’s impact on the historic property.89 Similarly, Friends of the National Park contends that whether the Tennessee SHPO was aware of the Bragg Reservation is irrelevant because the NPA required Wireless Properties to accurately and completely identify all historic properties, not just those that were unknown to the SHPO.90

  3. Discussion. We agree with the Order and the commenters in opposition that Wireless Properties’ failure to identify the Bragg Reservation was a material omission.91 While the Bragg Reservation is not individually listed on the National Register despite its historic significance as the location of an important Civil War battle, there is no dispute that it is a component of the Chickamauga and Chattanooga National Military Park, which is listed on the National Register.92 Therefore, as the NPS and other commenters argue, Wireless Properties’ consultants should have looked at the National Register to determine that the Park includes the Bragg Reservation and the Bragg Reservation is a listed property within the APE.93 In reaching this conclusion, we give particular weight to the views of the NPS as the federal agency charged with administering the National Register as well as the longtime steward of the National Park.94 Furthermore, because the National Register is one of the sources that the NPA requires applicants to review in identifying and evaluating historic properties within the APE for visual effects,95 and all of the information necessary to identify the Bragg Reservation as a listed property within the APE was readily discernible from the National Register, its identification as a listed property to be disclosed in the Submission Packet did not require that Wireless Properties look beyond the National Register and review other specified sources available in the SHPO’s office or in publicly available sources identified by the SHPO.96 For this reason, Wireless Properties cannot rely on the failure of a map provided by the Tennessee SHPO to identify the Bragg Reservation, or to clarify its relationship to the National Park, to excuse its omission. Making sure Wireless Properties knew the location of the Bragg Reservation (within the APE) and its relationship with the National Park (partially within the APE) was not the Tennessee SHPO’s responsibility under the NPA. Failing to identify the Bragg Reservation was a material error in Wireless Properties’ submission that undermined the ability of the Tennessee SHPO, the NPS, and the public to understand and evaluate the effects of the proposed tower on a historically significant Civil War site visited by thousands each year. Wireless Properties’ failure to identify the Bragg Reservation, by not carefully following the NPA’s procedures in preparing Submission Packet, was a material error or omission that precluded the effective consultation and meaningful historic preservation review required by Section 106.97

  4. We also agree with the Division in rejecting Wireless Properties’ claim that any error or omission on its part was immaterial because the Tennessee SHPO was aware or should have been aware of the Bragg Reservation’s location within the APE when it conducted its initial review. Wireless Properties offers scant evidence of the Tennessee SHPO’s actual knowledge of the Bragg Reservation, asserting no support other than its own Declaration that a representative of the Tennessee SHPO’s office stated that the Tennessee SHPO “knew in general terms where the Bragg Reserve was.”98 Moreover, Wireless Properties, as the applicant, had sole responsibility under the NPA to identify historic properties in the APE,99 and it cannot shift legal responsibility for its material error or omission to the SHPO. Wireless Properties claims that other documents in its submission, including its unanswered letter to the National Park, should have alerted the Tennessee SHPO that the Bragg Reservation is within the APE despite its omission from the list of historic properties in the Submission Packet. Nothing in Section 106 or in the NPA, however, permits Wireless Properties to shift to the Tennessee SHPO the burden of sifting through other documents included in the submission to identify historic properties that it was required to, but did not, list. Consistent with the SHPO’s statutory role as a consulting party without ultimate responsibility for Section 106 reviews,100 the NPA does not impose an affirmative duty on the SHPO to independently identify significant historic properties within the APE that are not properly disclosed in the Submission Packet.101 As the party obligated under the NPA to file a Submission Packet that accurately identified all historic properties within the APE, Wireless Properties bears full responsibility for the fact that its listing of historic properties did not include the Bragg Reservation.102 Nothing in Section 106 or the NPA supports Wireless Properties’ effort to convert this process into a factual inquiry into what the Tennessee SHPO should or could have identified on its own.
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