Before the Federal Communications Commission Washington, D



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55 See NPA Report and Order, 20 FCC Rcd at 1077.

56 See para. 17, supra.

57 Advisory Council Letter at 1-2 (explaining that the SHPO does not assume the Federal agency’s responsibility, but instead participates in a consultative role to assist the agency in the Section 106 review process); see also note 48, supra.

58 See Advisory Council Letter at 2 (“[A]s the party in legal jeopardy for noncompliance with Section 106, the FCC needs to retain the ability to correct such errors—an ability clearly afforded by Stipulation XI of the NPA.”). The views of the Advisory Council are particularly significant because Congress has entrusted the Advisory Council with administering Section 106 and, accordingly, the Advisory Council’s interpretation of the NHPA and its own rules merits substantial deference. CTIA v. FCC, 466 F.3d 105, 115-17 (D. C. Cir. 2006), citing 16 U.S.C. § 470s (recodified at 54 U.S.C. § 304108). See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., et al. 467 U.S. 837 (1984). Section 202(b) of the NHPA requires the Advisory Council to “review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this Act.” 54 U.S.C. § 304102(a)(6) (formerly codified at 16 U.S.C. § 470j(a)(6)). Further, Section 800.9(a) of the Advisory Council’s rules authorizes it to “provide to the agency official its advisory opinion regarding the substance of any finding, determination or decision or regarding the adequacy of the agency official’s compliance with the procedures under this part.” 36 C.F.R. § 800.9(a) (also providing that “[t]he Council may provide such advice at any time at the request of the individual, agency or organization or on its own initiative,” and that “[t]he agency official shall consider the views of the Council in reaching a decision on the matter in question”).

59 National Trust Opposition at 2. See also NPS Opposition at 7 (arguing that the Order’s interpretations of Section XI of the NPA are “supported by the record in this proceeding and are consistent with the requirements of the NPA”).

60 Application for Review at 8-9.

61 NPA Report and Order, 20 FCC Rcd at 1129-30 para. 156.

62 The NPA provides for a Commission decision in a number of circumstances where there is disagreement as to the effects of a proposed tower without specifically delineating criteria the FCC should use. See, e.g., NPA §§ VI.B.4 (providing that the applicant may submit a disagreement with the SHPO as to effects on an historic property to the Commission), VI.C.2 (providing that, if the SHPO does not notify the applicant of its decision within thirty days, concurrence is presumed and the Section 106 process is complete unless the Commission notifies the applicant otherwise), VI.C.4 (providing that, if the SHPO disagrees with an applicant’s finding of no adverse effect and the parties cannot resolve their dispute, the applicant may at any time choose to submit the matter to the Commission). Furthermore, the Commission has exercised its discretion in interpreting the NPA in other cases. See, e.g., United States Cellular Corp. Constructed Tower Near Fries, Virginia, 24 FCC Rcd. 8729, 8735 para. 17 (2009) (noting that Section X.C of the NPA instructs the Commission to take “appropriate action” upon receiving a complaint, thus affording it broad discretion to determine what action is appropriate based on the facts of each case); White Park Broadcasting, 24 FCC Rcd 3549, 3567 para. 27 (2009) (finding that, where an applicant did not furnish accurate and complete information in its Form 620, “[t]he choice of remedies and sanctions is an area in which we have broad discretion”).

63 See 36 C.F.R. § 800.13(b) (providing that, if historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the Section 106 process, the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties). Wireless Properties argues that we cannot rely on Section 800.13(b) because it has been superseded by Section IX of the NPA, which sets forth specific procedures to follow in the event of inadvertent or post-review discoveries. Application for Review at 20. We clarify that we are not relying on Section 800.13(b) as legal authority, but citing it as evidence that the policies the Advisory Council has followed in implementing the NHPA are consistent with our interpretation of Section XI.

64 As noted above, the authority afforded the Commission under Section XI of the NPA to reopen a Section 106 proceeding in these limited circumstances extends only to the Commission. We reiterate that the SHPO does not have such authority under the NPA. See note 41 supra.

65 See, e.g., NPA §§ VII.C.1 (“If the SHPO/THPO concurs in writing with the Applicant’s determination of no adverse effect, the Facility is deemed to have no adverse effect on Historic Properties. The Section 106 process is then complete and the Applicant may proceed with the project, unless further processing for reasons other than Section 106 is required.”), VII.A (limiting the SHPO to a 30-day review period, subject to an extension of up to 5 days).

66 See generally NPA § VI (describing standards and procedures applicant shall apply in preparing the Submission Packet).

67 See 54 U.S.C. § 300101 (formerly codified at 16 U.S.C. § 470-1) (stating that it is the policy of the Federal Government to “provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments” and to “contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means”).

68 National Trust Opposition at 3.

69 See Joseph Kroboth, III, 28 FCC Rcd 1142 (WTB SCPD 2013) (declining to reopen the Section 106 process because there was not a material omission or other failure to complete the foundational steps of the process sufficient to overcome the earlier determination’s finality).

70 See Section III.B, infra.

71 Application for Review at 11-15; Reply at 13.

72 5 U.S.C.§§ 551(8) (defining “license” to include the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission); 551(9) defining “licensing” to include “agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification or conditioning of a license”).

73 47 C.F.R. § 1.1312; NPA § I.E.

74 NPA §§ VII.B.1 (The SHPO concurs in writing with the Applicant’s determination of no historic properties affected), VII.B.2 (The SHPO does not provide written notice to the Applicant that it agrees or disagrees with the Applicant’s determination of no historic properties affected within 30 days following receipt of a complete Submission Packet), VII.C.1 (The SHPO concurs in writing with the Applicant’s determination of no adverse effect).

75 NPA § I.E.

76 454 F.2d 928 (D.C. Cir. 1971) (Blackwell).

77 Blackwell, 454 F.2d at 933, quoting 5 U.S.C. 558(c) (“Except in cases of willfulness or those in which public health, interest, or safety require otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given -- (1) notice by the agency in writing of the facts or conduct which may warrant the action, and (2) opportunity to demonstrate or achieve compliance with all lawful requirements”).

78 Application for Review at 11.

79 The court found that the enforcement proceeding in which the school lost its approved status was marked by several violations of procedural due process, including ex parte testimony that the school was not allowed to rebut.

80 Application for Review at 15-16; Reply at 1-5.

81 Application for Review at 16; Reply at 3-5. Wireless Properties argues that the NPA imposes no obligation on applicants to “ferret out” units or segments of listed properties, but instead requires applicants to consult five specific sources to the extent they are “available at the offices of the SHPO/THPO or can be found in publicly available sources identified by the SHPO/THPO.” Reply at 3-4 (quoting NPA § VI.D.1.a).

82 Application for Review at 17-18.

83 Application for Review at 16. See Letter from Henry A. Fisher, Engineer, Environmental Engineers, Inc., to Chickamauga and Chattanooga National Military Park (March 21, 2006) (Exhibit F to the Petition). The National Park did not respond to this letter.

84 Wireless Properties bases this contention on the declaration of G. Larry Wells, President of Wireless Properties, attesting to the contents of an after-the-fact telephone conference call on March 5, 2007, with unnamed members of FCC staff, Wireless Properties’ legal counsel, representatives of the NPS, and Dr. Joseph Y. Garrison, a representative of the Tennessee SHPO. According to Wireless Properties, during that conversation, Dr. Garrison stated that the Tennessee SHPO “knew in general terms where the Bragg Reserve was.” Application for Review at 17 & Ex. 4. See also Reply at 1-2.

85 See, e.g., CRHM Letter at 1; CWPT Letter; Friends of the National Park Letter; Neighborhood Association Letter at 1-2; National Trust Opposition at 1; TCWPA Letter at 1; Cornerstones Letter.

86 NPS Opposition at 2. See Neighborhood Association Opposition at 2 (noting that the Bragg Reservation is part of a discontinuous historic district associated with the National Park). The NPS states that it is fighting a constant battle at the National Park against incremental erosion of the values of the battlefield sites, and that Wireless Properties seeks to construct a phone tower directly in the viewshed of the Bragg Reservation. NPS Opposition at 2-3.

87 NPS Opposition at 6 n.5 (“This was a mistake of Wireless Properties and cannot be passed off on the SHPO.”).

88 Advisory Council Letter at 1-2 (arguing that Wireless Properties improperly failed to identify the Bragg Reservation as a historic property within the APE, and it is of no consequence that the Bragg Reservation is part of the National Park, not a separate historic property, or that the bulk of the National Park is located outside the APE); Neighborhood Association Letter at 8-9 (arguing that Wireless Properties was required to list the Bragg Reservation because it is part of the National Park, which is listed in the National Register).

89 NPCA Opposition at 2. NPCA rejects Wireless Properties’ suggestion that an agency reviewing an application should be aware of a tower’s proximity to historic properties simply by observing the proposed location on a map. Id.

90 Friends of the National Park Letter at 2.

91 As Wireless Properties and the NPS agree, it is premature for us to assess whether the proposed tower would have adverse effects and, if so, whether they can be mitigated. Reply at ii; NPS Opposition at 5. These questions will be considered in the first instance by the Tennessee SHPO in the reopened Section 106 review.

92 For the National Register listing of the National Park, see http://pdfhost.focus.nps.gov/docs/nrhp/text/66000274.PDF. The Park includes the Bragg Reservation. See http://npplan.com/parks-by-state/georgia/at-a-glance-chickamauga-and-chattanooga-national-military-park/. See also NPS Opposition at 5, n. 4 (“Although the property at issue is not listed in the National Register as ‘Bragg Reservation’ it is included in the listing for the Park and as part of the ‘discontinuous historic district’ associated with the Park.”).

93 NPS Opposition at 6, n.5 (“[T]he consultants should have looked at the Register of Historic Places and determined that the Park included the Bragg Reservation.”); see also Advisory Council Letter at 2; National Trust Opposition at 1; NPS Opposition at 4; Friends of the National Park Letter at 1-2; Neighborhood Association Letter at 2.

94 See 36 C.F.R. § 60.3 (Department of Interior regulation delegating to the NPS authority and responsibility for administering the National Register program).

95 NPA § VI.D.1.a.i (“Applicants shall identify Historic Properties within the APE for visual effects by reviewing . . . [p]roperties listed in the National Register”).

96 NPA § VI.D.1 (listing the sources (including the National Register) that applicants are required to review when identifying and evaluating historic properties within the APE for visual effects, and providing that applicants are required to review these records “only to the extent that they are available at the offices of the SHPO/THPO or can be found in publicly available sources identified by the SHPO/THPO.”)

97 See note 54, supra.

98 See Declaration of G. Larry Wells, Application for Review at Ex. 4.

99 See para. 19, supra.

100 54 U.S.C. §§ 302303(b)(5) (formerly codified at 16 U.S.C. § 470a(b)(3)(E)) (SHPO’s responsibility 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)) (SHPO shall consult with federal agencies on federal undertakings that may affect historic properties).

101 In certain circumstances, the NPA does authorize the SHPO to identify additional properties within the APE, including properties already within its inventory that the SHPO considers eligible but that are not disclosed in publicly available records that the applicant was required to review. NPA §§ VI.D.1.c.1, VII.A.4.

102 In proceedings before the Division, Wireless Properties contended that it did identify the Bragg Reservation by submitting a U.S. Geological Survey topographic map that shows a “monument” at the Bragg Reservation’s location. The Order rejected this argument, noting that the graphics that Wireless Properties added to the map to indicate the locations of the tower site and several historic properties did not highlight the Bragg Reservation. The Order thus concluded that the map did not meaningfully indicate that the Bragg Reservation is located within the APE, much less that it might be impacted by the tower. Order, 22 FCC Rcd at 9306. We agree with this analysis.

103 In its Reply, Wireless Properties asserted that it was in the process of resubmitting its Form 620 Submission Packet to the Tennessee SHPO and would include a full evaluation of potential effects. Reply at ii, n.3. The Commission has received no indication that Wireless Properties’ Submission Packet has been resubmitted.

104 Wireless Properties need not resubmit to the Tennessee SHPO information that it has already submitted, but may supplement its earlier submission to include the Bragg Reservation and any other omitted historic properties..

105 Order, 22 FCC Rcd at 9306. See also Reply at ii (acknowledging that it is premature for the Commission to assess adverse effects).

106 See, e.g., Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket No. 13-238, 29 FCC Rcd 12865, 13016-17 (2014) (Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3GynH; see also Remarks of Commissioner Ajit Pai at PCIA’s 2014 Wireless Infrastructure Show (2014), available at http://go.usa.gov/3GynV; Remarks of Commissioner Ajit Pai at CTIA’s MobileCon (2012), available at http://go.usa.gov/wMG9.

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