Before the Federal Communications Commission Washington, D



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IV.conclusion


  1. 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

V.ordering clauses


  1. 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.

  2. IT IS FURTHER ORDERED that the Section 106 review shall proceed as described herein.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

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.


1 Wireless Properties, Application for Review, filed June 22, 2007 (Application for Review).

2 Wireless Properties, LLC Petition for Declaratory Ruling, Proposed Tower, Missionary Ridge, Chattanooga, Tennessee, Order, 22 FCC Rcd 9299 (2007) (Order). On May 12, 2015, the Spectrum and Competition Policy Division was renamed the Competition and Infrastructure Policy Division.

3 54 U.S.C. § 306108 (formerly codified at16 U.S.C. § 470f).

4 See 54 U.S.C. § 302301(a) (formerly codified at 16 U.S.C. § 470a(b)(1)(A)) (providing for designation of State Historic Preservation Officers).

    5 Nationwide Programmatic Agreement for the Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (NPA), 47 C.F.R. Part 1, App. C. See 47 C.F.R. § 1.1307(a)(4) (requiring that applicants shall use the NPA to ascertain whether proposed facilities may affect properties that are listed or eligible to be listed in the National Register ); Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073 (2004) (NPA Report and Order), aff’d sub nom CTIA-Wireless Ass'n v. F.C.C., 466 F.3d 105 (D.C.Cir. 2006).

6 Under the NPA, the APE for visual effects for a tower 200 feet or less in overall height is presumed to be a circle with a half-mile radius unless otherwise established through consultation. NPA § VI.A.4.a.

7 For the National Park’s listing in the National Register, see http://pdfhost.focus.nps.gov/docs/nrhp/text/66000274.PDF.

8 See NPA § VI.

9 In particular, the NPA directs applicants to consult the National Register and certain records that are maintained by the SHPO or that can be found in publicly available sources identified by the SHPO to determine what properties to consider when evaluating the visual effects of proposed towers on historic properties, other than properties of traditional cultural and religious significance to Tribal Nations and Native Hawaiian Organizations. See NPA § VI.D.1.

10 NPA §§ VII.A.1. (providing that the applicant shall prepare a Submission Packet for the SHPO and the consulting parties that (1) defines the APE; (2) identifies historic properties within the APE; (3) evaluates the historic significance of the identified properties; and (4) assesses the effects of the proposed undertaking); VII.B-D (requiring that the SHPO shall review the Submission Packet and the applicant’s proposed determination in the first instance and specifying circumstances that do not require direct involvement by Commission staff in the Section 106 process).

11 See Wireless Properties FCC Form 620 (filed March 13, 2006) (Exhibit A to the Petition). While the Form 620 references a 180-foot monopole, Wireless Properties subsequently informed the Tennessee authorities that it intends to build only a 150-foot monopole. See Letter from Henry A. Fisher, Engineer, Environmental Engineers, Inc., to Paul Archambault, Historic Preservation Planner, Chattanooga Area Regional Council of Governments, Southeast Tennessee Development District (April 18, 2006); Letter from Henry A. Fisher, Engineer, Environmental Engineers, Inc., to Dr. Joseph Garrison, Tennessee Historical Commission (May 26, 2006).

12 See A Phase I Cultural Resources Assessment of the Proposed I-24 Ridgecut Telecommunications Tower in Chattanooga, Hamilton County, Tennessee, FCC Form 620, March 13, 2006 (Exhibit A to the Petition).

13 See Letter from Paul Archambault, Historic Preservation Planner, Chattanooga Area Regional Council of Governments, Southeast Tennessee Development District, to Marla Spry, MRS Consultants, LLC (Feb. 16, 2006) (attached as Appendix C to the Petition); see also Letter from Paul Archambault, Historic Preservation Planner, Chattanooga Area Regional Council of Governments, to Henry Fisher, Environmental Engineers, Inc. (May 9, 2006) (reiterating his conclusion as applied to a 150-foot tower). As a matter of practice, the Tennessee SHPO considers the advice and local knowledge of the local historic preservation planner in performing Section 106 review. See http://www.tennesseepreservationtrust.org/resources/tennessee-development-districts.

14 See Letter from Herbert L. Harper, Executive Director and Deputy State Historic Preservation Officer, Tennessee Historical Commission, to Henry Fisher, Environmental Engineers (March 29, 2006) (Exhibit G to the Petition); see also Letter from Herbert L. Harper, Executive Director and Deputy State Historic Preservation Officer, Tennessee Historical Commission, to Henry Fisher, Environmental Engineers, Inc. (June 12, 2006) (reiterating concurrence as applied to a 150-foot tower).

15 Letter from Paul Archambault, Historic Preservation Planner, Chattanooga Area Regional Council of Governments, Southeast Tennessee Development District, to Joseph Y. Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Dec. 11, 2006) (Exhibit H to the Petition).

16 Id.

17 Letter from Richard G. Tune, Deputy SHPO, Tennessee Historical Commission, to James A. Duncan, Terracon (Dec 14, 2006). While not conceding that the Tennessee SHPO had the authority to reverse its decision, Wireless Properties subsequently conducted a “balloon test,” in which observers assess visual effects based on a balloon floating at the height of the proposed tower. After observing the balloon test, several parties filed comments with the Tennessee SHPO opposing the tower. See Letter from Lora Peppers, Acting Superintendent, Chickamauga and Chattanooga National Military Park, to Dr. Joe Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Feb. 1, 2007); Letter from Dwayne Smith, Missionary Ridge Neighborhood Association, to Dr. Joe Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Jan. 30, 2006 [sic]); Letter from John Hillbrandt, President, and Kay Parish, Executive Director, Friends of Chickamauga and Chattanooga National Military Park, to Dr. Joe Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Jan. 25, 2007); Letter from Kay Parish, Executive Director, Friends of Chickamauga and Chattanooga National Military Park, to Dr. Joe Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Jan. 29, 2007); Letter from John B. Hildreth, Director, Southern Office, National Trust for Historic Preservation, to Dr. Joe Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Feb.6, 2007); Letter from Cornerstones, Inc. to Dr. Joe Garrison, Review and Compliance Coordinator, Tennessee Historical Commission (Jan. 30, 2007).

18 See Letter from Dan Abeyta, Assistant Chief, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau, to Fred R. Wagner, Beveridge & Diamond, P.C. (Feb. 22, 2007).

19 Letter from Charlene Dwin Vaughn, Assistant Director, Federal Permitting, Licensing, and Assistance Section, Office of Federal Agency Programs, Advisory Council on Historic Preservation, to Jeffrey Steinberg, Deputy Chief, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau (April 24, 2007) (Advisory Council April 24 Letter).

20 Id.

21 Wireless Properties, LLC’s Petition for Expedited Declaratory Ruling (April 25, 2007) (Petition). On the same day, Wireless Properties also filed a response to the Advisory Council’s April 24 Letter, arguing that its concerns were misguided and founded on misrepresentations by local opponents of the tower. Letter from Fred Wagner, Beveridge & Diamond, PC, to Dan Abeyta, Assistant Chief, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau (April 25, 2007).

22 Letter from Sam D. Elliott, Gearheiser, Peters, Lockaby, Cavett & Elliott, PLLC, to Kevin J. Martin, Chairman, Federal Communications Commission (April 25, 2007). The letter also argued that the review was defective because Wireless Properties did not provide adequate notice of the proposed tower to the Neighborhood Association. The Order did not address this argument, and we need not reach it here because we are reopening the review on other grounds and the Neighborhood Association now has notice of the review.

23 See NPA§ XI (providing that the public may notify the Commission of concerns regarding application of the NPA with respect to review of individual undertakings and the Commission will consider these comments and “where appropriate, take appropriate actions”).

24 Letter from Elizabeth Merritt, Deputy General Counsel, National Trust, to Jeffrey S. Steinberg, Deputy Chief, Spectrum and Competition Policy Division, Wireless Telecommunications Bureau (May 15, 2007). See 36 C.F.R. § 800.13(b)(1) (providing that, if unanticipated effects on historic properties are found after the Section 106 process is completed and before construction has commenced, the agency shall consult to resolve any adverse effects).

25 Order, 22 FCC Rcd at 9304 paras. 13-14. The Division stated that “[t]he NPA affords finality only for those who have complied with its prerequisites.” Id. at 9305 para. 15.

26 Id.

27 Id.

28 Id.

29 Order, 22 FCC Rcd at 9306 para. 19.

30 See Letter from John M. Fowler, Executive Director, Advisory Council on Historic Preservation to Kevin J. Martin, Chairman, Federal Communications Commission (July 18, 2007) (Advisory Council July 18 Letter); Letter of Opposition to Wireless Properties, LLC’s Application for Review filed by Missionary Ridge Neighborhood Association (July 2, 2007) (Neighborhood Association Letter); Letter from Sam D. Elliott, Gearheiser, Peters, Lockaby, Cavett & Elliott, on behalf of Friends of the Chickamauga and Chattanooga National Military Park to Federal Communications Commission (July 2, 2007) (Friends of the National Park Letter); Letter from Mary Ann Peckham, Executive Director, Tennessee Civil War Preservation Association to Federal Communications Commission ((July 15, 2007) (TCWPA Letter); The National Trust for Historic Preservation, Opposition to Application for Review (July 20, 2007) (National Trust Opposition); Letter from O. James Lighthizer, President, Civil War Preservation Trust, to Federal Communications Commission (July 19, 2007) (CWPT Letter); The NPS, Opposition to Application for Review (July 20, 2007) (NPS Opposition); Letter from Daryl Black, Ph.D., Curator, Chattanooga Regional History Museum to Federal Communications Commission (July 20, 2007) (CRHM Letter); The National Parks Conservation Association, Opposition to Application for Review (July 20, 2007) (NPCA Opposition); Letter from Ann Myers Gray, Executive Director, Cornerstones, Inc. to Kevin J. Martin, Chairman, Federal Communications Commission et al. (July 3, 2007) (Cornerstones Letter).

31 Wireless Properties, LLC’s Reply in Support of its Application for Review (Aug. 2, 2007) (Reply).

32 47 C.F.R. § 1.115(b).

33 In particular, Wireless Properties relies on Section VII.C.1 of the NPA, which provides that once the SHPO makes a written finding of no adverse effect on historic properties, the Section 106 process is complete and the applicant can proceed with construction. See Application for Review at 8; Reply at 11-12 (arguing that when the SHPO concurs with the applicant’s finding of no adverse effect, no further Commission proceedings are necessary).

34 NPA § XI.

35 36 C.F.R. § 800.13(b).

36 Application for Review at 20; Reply at 13-14.

37 Application for Review at 11-15; Reply at 13. Wireless Properties also contends that the full Commission should have acted on the Petition because it presented a novel question of law and policy outside the Division’s delegated authority. Application for Review at 20-21. This argument is moot as these issues are now before the Commission for review.

38 See, e.g., Advisory Council July 18 Letter at 2 (arguing that Section XI of the NPA affords the FCC the ability to correct errors such as an applicant’s failure to identify a historic property listed on the National Register within the APE); National Trust Opposition at 2, 4-5 (contending that the relief granted in the Order is “precisely the kind of ‘appropriate action’ authorized by Stipulation XI” of the NPA); NPS Opposition at 7 (arguing that the Order’s reliance on Section XI of the NPA is supported by the record and consistent with the goals of the NPA).

39 National Trust Opposition at 4-5 (arguing that the Order properly relied on Section 800.13(b)).

40 Letter from Elizabeth S. Merritt, Deputy General Counsel, National Trust, to Jeffrey S. Steinberg, Deputy Chief, Spectrum and Competition Policy Division, Wireless Communications Bureau (May 15, 2007) (sharing the concerns expressed by the Advisory Council, the NPS, the Tennessee SHPO, and a number of local groups regarding the proposed tower’s adverse effects on historic properties and the defects in the earlier review, and requesting that the FCC reopen Section 106 consultation pursuant to Section XI of the NPA); Letter from Sam D. Elliot, Gearheiser, Peters, Lockaby, Cavett & Elliott, PLLC, to Kevin J. Martin, Chairman, Federal Communications Commission (Apr. 25, 2007) (asking the Commission on behalf of the Neighborhood Association and the Friends of the National Park to overturn the Tennessee SHPO’s no adverse effect finding due to a significant procedural defect in the review).

41 We clarify that Section XI of the NPA provides this authority to the Commission, not to the SHPO, which may not on its own authority reopen a completed Section 106 review

42 Application for Review at 9.

43 Id. at 18-19. See NPA §§ VI.D.1.c.i (providing that, during the 30-day review period, the SHPO may identify additional properties included in the inventory and located within the APE that the SHPO considers eligible for National Register listing and shall notify the Applicant pursuant to Section VII.A.4), VII.A.4 (providing that, if the SHPO determines that the Submission Packet is inadequate or it identifies additional historic properties within the APE, it will immediately notify applicant and describe any deficiencies).

44 See NPA § VII.C.1 (providing that, if the SHPO concurs in writing with the applicant’s determination of no adverse effect, the facility is deemed to have no adverse effect on historic properties and the Section 106 process is complete).

45 Application for Review at 18-19.

46 See NPA §§ VI.A (“In preparing the Submission Packet for the SHPO/THPO, . . the Applicant shall . . . identify Historic Properties within the APE.”), VI.D.1 (specifying sources that the applicant must review when identifying historic properties); see also NPA Report and Order, 20 FCC Rcd at 1117 para. 121 (referring to “applicants’ obligations with respect to the identification and evaluation of historic properties within the APE for visual effects”).

47 See NPS Opposition at 6-7; Neighborhood Association Letter at 5 (arguing that, under Section VI of the NPA, it is the applicant’s burden to make a complete submission, and the SHPO is not responsible for completing the submission or verifying its content or completeness); NPCA Opposition at 4 (contending that Wireless Properties’ argument is flawed as it implies that the SHPO alone bears the burden of identifying errors).

48 While Wireless Properties notes that the NHPA allocates to the SHPO certain responsibilities to administer a federally approved historic preservation program, Reply at 12, citing 54 U.S.C. §§ 302303(b)(1),(2),(5),(9) (formerly codified at 16 U.S.C. §§ 470a(b)(3)(A),(B),(E),(I)), most of these responsibilities do not bear upon Section 106 review. See, e.g., 54 U.S.C. § 302303(b)(1) (formerly codified at 16 U.S.C. § 470a(b)(3)(A)) (directing SHPO, in consultation with Federal agencies and other parties, to direct and conduct a statewide survey of historic properties and maintain inventories of such properties). With respect to Section 106 review, the SHPO’s responsibility is expressly of a consultative nature. See 54 U.S.C. § 302303(b)(5) (formerly codified at 16 U.S.C. §§ 470a(b)(3)(E)) (providing that the SHPO is to “advise and assist, as appropriate, Federal and State agencies and local governments in carrying out their historic preservation responsibilities”), 302303(b)(9)(A) (formerly codified at 16 U.S.C. § 470a(b)(3)(I)(i)) (providing that the SHPO shall consult with Federal agencies on Federal undertakings that may affect historic properties). Nothing in the NPA expands, nor could permissibly expand, the SHPO’s legal responsibilities beyond what is specified in the statute. Nor would the Advisory Council’s statutory authority to implement Section 106, 54 U.S.C. § 304108 (formerly codified at 16 U.S.C. § 470s), permit the approval of alternate Section 106 procedures developed pursuant to Section 800.14 of the Advisory Council’s regulations, 36 C.F.R. § 800.14, that are inconsistent with the text of the statute.

49 See NPA Report and Order, 20 FCC Rcd at 1119 para. 126 (stating that the SHPO review “provides a safeguard for the [SHPO] to identify specific historic properties that may be affected in rare instances where the process provided in the Nationwide Agreement might otherwise cause significantly affected properties to be overlooked”).

50 Order, 22 FCC Rcd at 9305 para. 15.

51 NPA §§ II.13 (defining Submission Packet), VII.A.1 (Submission Packet shall be submitted to the SHPO and all consulting parties).

52 NPA § VI.1.

53 NPA § VII.B-C.

54 NPA §§ VI.A (specifying the contents of the Submission Packet that the applicant prepares for the SHPO and the consulting parties), VI.D.1.a (specifying the resources and records the applicant must consult and review in identifying and evaluating National Register-listed or -eligible historic properties within the APE for visual effects); VI.D.1.c (Submission Packet shall include a list of properties identified by the applicant based on the sources listed in Section VI.D.1.a, information gathered from Tribal Nations and Native Hawaiian Organizations pursuant to Section VI.D.1.b, and public comment received pursuant to Section V).
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