WASHINGTON-The Cellular Telecommunications & Internet Association’s board of directors Wednesday voted to appeal rules recently adopted by the Federal Communications Commission meant to streamline tower sitings in historic areas.
“The CTIA Board of Directors believes the regulating of commercial mobile radio services and other wireless tower facilities, as allowed in the Nationwide Programmatic Agreement, is not a federal undertaking in that the FCC does not issue construction permits for such facilities,” said John Walls, CTIA vice president of communications.
The vote was expected after CTIA publicly protested the FCC issuing rules that CTIA believes should not apply to industry since the commission does not regulate mobile-phone tower sitings. The rules implement the recently adopted NPA on tower sitings in historic areas. The NPA was signed by the FCC, the federal Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers.
The NPA describes standards for identifying historic properties, establishes enforceable deadlines for SHPO and FCC review, and excludes certain constructions from review. These exclusions include enhancements to existing towers, temporary towers and some towers on industrial and commercial properties or in utility corridor rights of way.
When the rules were adopted, FCC Commissioners Kathleen Abernathy and Kevin Martin offered partial dissents, agreeing with industry on a long-held belief that wireless facilities are not federal undertakings like dams and roads and are therefore not subject to historic-preservation review.
“I do not believe the FCC has the legal authority under the terms of the National Historic Preservation Act to adopt this NPA,” said Abernathy. “I cannot agree that the construction of all communications antenna facilities invariably constitutes a federal undertaking for the purposes of NHPA. As a result, I believe the commission is exceeding its statutory authority in regulating antenna facilities where the FCC does not issue a construction permit. To the extent that there is no license grant for the construction of an antenna facility, it does not appear to me that there is any federal undertaking.”
The rules have not yet been published in the Federal Register. Once the rules are published, CTIA officially has 60 days to appeal but is expected to file within 10 days to ensure that the court of its choice will hear the case, said Walls.
The FCC declined comment.
