WASHINGTON-The FCC’s Wireless Telecommunications Bureau last month set down a marker as to whether towers can be placed along scenic highways and it came down on the side of the wireless industry.
“Given this consistent history of adapting the protection of the viewshed so as to accommodate changing technology, we conclude that the mere visibility of a modern structure, in and of itself, is insufficient to impose an adverse effect on a scenic highway such as the Taconic State Parkway. This is particularly so for a facility, such as a communications tower, that today forms an integral part of the transportation system,” wrote Jeffrey Steinberg, deputy chief of the wireless bureau. “In short, we would apply to communications facilities essentially the same standards that are applied to other elements of the modern highway (such as large signs, lighting, overpasses or expanded multi-lanes) that are thought to be necessary for safe and efficient highway use.”
Both American Tower Co. and Independent Wireless One requested building towers along the New York highway and said they were willing to stealth them, but the state historic preservation officer said that the TSP was “a representative intact example of a 20th Century limited-access scenic pleasure drive.”
The historic preservation process is a bit complex, but essentially a tower owner or carrier must certify that a tower will not harm the historic characteristics of its neighborhood and because of height this can extend out two miles. If the SHPO agrees, the Federal Communications Commission licenses the towers after concluding there are no other objections or issues. But if the SHPO disagrees, the FCC can overrule the SHPO, but it must consult with the Advisory Council on Historic Preservation.
Steinberg’s letter was sent to the ACHP and that agency was set to respond late Friday.
The New York letter seems to be part of a trend that the wireless bureau is using to make policy through letters on specific cases. WTB Chief John Muleta would not admit to that while speaking to reporters on Thursday. Nevertheless, he did not back away from the Steinberg letter.
Muleta said the FCC needs to better use the bully pulpit to explain why there are dead spots and he was critical of Sen. Charles Schumer’s (D-N.Y.) complaints of coverage in New York City.
“With all due respect to Sen. Schumer’s office, I do think we need to come up with a new way of thinking about that issue,” said Muleta.
The wireless industry, the FCC and ACHP have been trying for several years to come to grips with historic-preservation issues. The ACHP created a telecommunications working group to hammer out the basic details of agreements. Instead of being easy, it has been a contentious multi-year process.
Today the FCC and ACHP are trying to complete a programmatic agreement that would allow towers to be built with less review. It is a follow-on agreement to a colocation agreement, which grandfathered towers built before 2001.
The FCC said recently that the draft programmatic agreement would overrule ACHP’s proposed rules to implement the National Historic Preservation Act.
The ACHP was required to go back and rewrite some of its NHPA implementing rules after a federal court said it had overstepped its bounds.
The wireless industry and the FCC met the new proposals with skepticism.
The FCC said it was concerned that the proposed ACHP rules would be burdensome. “Requiring a decision by the full commission in even a fraction of the thousands of licenses and authorizations for telecommunications radio services issued by the agency each year would not only delay the deployment of needed service to the public, it could also delay FCC consideration of other important issues of telecommunications policy having no historic preservation implications.”
PCIA said the ACHP rules might not be legally sustainable, noting that they were in response to a court ruling that gutted previous rules.
“It would seem that the proposed amendments should be directed at effectuating the goals and limitations expressed in the court’s decision. The ACHP, however, has gone further, and used these amendments to establish a principle neither found in the NHPA, nor allowed by court decisions,” said PCIA. “The heart of the district court’s ruling on this point is that the NHPA gives to the agency, and not to the ACHP, the responsibility of making determinations of effect. The fact that a SHPO or the ACHP disagrees with an agency’s finding of `no effect’ or `no adverse effect’ does not make the finding `erroneous.’ Accordingly, amendments to the NHPA rules that are intended to advance a purpose that is itself erroneous are legally suspect on that ground alone.”
But it wasn’t just the FCC and industry that were concerned about the ACHP rules. Two lawmakers threatened to re-write the NHPA if the ACHP continued to include properties that are eligible for inclusion on the National Register of Historic Properties instead of just those that have been approved for inclusion.
“The inclusion of potentially eligible properties and the requirement of assessment of visual effects from cellular towers threatens to have the cumulative effect of turning the historic preservation act into a virtual national-zoning statute, to the detriment of the rights of millions of property owners,” said Reps. Richard Pombo (R-Calif.), chairman of the House Resources Committee, and George Radanovich (R-Calif.), chairman of the House national parks, recreation and public lands subcommittee.
In other siting news, the Connecticut Siting Council on Jan. 7 plans to review an application from Sprint PCS to build a tower in the backyard of a member of the Easton Planning and Zoning Commission even though that board has already recommended rejecting the application.
The Connecticut Post of Bridgeport, Conn. reported that members of the neighborhood are against the tower. The fact that the Kowalskis would financially benefit from renting the space for the tower is also a problem, according to the Connecticut Post.
