Based on the foregoing, we deny Wireless Properties’ Application for Review, affirm the Order, and hold that Wireless Properties’ failure to identify a significant historic property within the APE constituted a material error or omission that precluded the Tennessee SHPO from performing an effective review. We further affirm the direction in the Order to reopen the review.103 On reopened review, Wireless Properties must ensure that its entire Submission Packet, including materials already submitted to the Tennessee SHPO, is complete and reflects the Bragg Reservation and all other historic properties that must be identified under the NPA.104 The Tennessee SHPO shall confine its reopened review to effects on the Bragg Reservation and any other properties that were not previously identified, and shall not reconsider effects on properties that were fully disclosed and properly presented to it in the original Submission Packet. We also affirm the Division’s determination that the Tennessee SHPO should address Wireless Properties’ arguments that its proposed tower would not have an adverse effect on the Bragg Reservation because the area already contains many intrusions, and that many objections to the tower are based on aesthetic concerns that are not properly part of the historic preservation review process.105
IT IS THEREFORE ORDERED, pursuant to Sections 4(i) and 303(r) of the Communications Act, as amended, 47 U.S.C. §§ 154(i), 303(r), Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. § 306108, and Sections 1.2, 1.1307(a)(4), and 1.115(g) of the Commission’s rules, 47 C.F.R. §§ 1.2, 1.1307(a) (4), 1.115(g), that the Application for Review filed by Wireless Properties, LLC, is DENIED.
IT IS FURTHER ORDERED that the Section 106 review shall proceed as described herein.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
STATEMENT OF COMMISSIONER AJIT PAI
Re: Wireless Properties, LLC Application for Review.
Deploying the towers, antennas, and other infrastructure necessary to meet consumers’ growing demand for mobile broadband is no easy task. And it’s often made more difficult by federal, state, and local regulations that unnecessarily slow the process down.106 So when a state determines that a proposed tower will not adversely affect any historic property identified by the applicant, the law treats that as the state’s final answer.
Accordingly, today’s Order correctly finds that Tennessee lacked authority under the Nationwide Programmatic Agreement (NPA), which governs the review process, to reopen a proceeding after concluding that a proposed tower would have no adverse impact. This is the right answer under the law and one that will help promote certainty and transparency while speeding the deployment of wireless infrastructure.
At the same time, the NPA does provide the Federal Communications Commission with limited authority to reopen a proceeding. And I believe the FCC lawfully exercises that authority in this case because the applicant omitted material information from its application. In particular, it did not identify a National Park that fell within the proposed tower’s Area of Potential Affect. So I agree that the FCC should exercise its own authority under the NPA and reopen the proceeding for the limited purpose of allowing the state to examine the proposed tower’s potential impact on that property.
I would like to thank my colleagues for accommodating my suggestions on this item, and the hard-working staff of the Wireless Telecommunications Bureau, including Mania Baghdadi, Stephen Delsordo, Erica Rosenberg, Jeff Steinberg, and Johanna Thomas for their efforts.