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Tentative Programmatic Agreement With Respect to Co-Locating Wireless Antennas on Existing Structures
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[Federal Register: April 2, 2001 (Volume 66, Number 63)]
[Notices]
[Page 17554-17557]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ap01-55]
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FEDERAL COMMUNICATIONS COMMISSION
Tentative Programmatic Agreement With Respect to Co-Locating
Wireless Antennas on Existing Structures
AGENCY: Federal Communications Commission.
ACTION: Notice.
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SUMMARY: In this public notice, we announce the issuance of a
Nationwide Programmatic Agreement (Programmatic Agreement), attached as
Appendix A, that streamlines procedures for review of collocations of
antennas under the National Historic Preservation Act (NHPA). This
Nationwide Programmatic Agreement has been executed by the Federal
Communications Commission, the National Conference of State Historic
Preservation Officers, and the Advisory Council on Historic
Preservation.
FOR FURTHER INFORMATION CONTACT: Joel Taubenblatt, Wireless
Telecommunications Bureau, at (202) 418-7240.
SUPPLEMENTARY INFORMATION: The Wireless Telecommunications Bureau
previously sought public comment on a previous draft of this
Programmatic Agreement by Public Notice released December 26, 2000. See
Wireless Telecommunications Bureau Seeks Comment on a Draft
Programmatic Agreement with Respect to Co-Locating Wireless Antennas on
Existing Structure, Public Notice, DA 00-2901 (rel. Dec. 26, 2000), 66
FR 795 (Jan. 4, 2001). The executing parties have considered all
comments received in response to the Public Notice, and have made
several changes to the draft agreement in response to these comments.
This is a summary of the Public Notice which includes the full text
of the finalized and agreed upon version of the Programmatic Agreement.
See Wireless Telecommunications Bureau Announces Execution of
Programmatic Agreement with Respect to Collocating Wireless Antennas on
Existing Structures, Public Notice, DA 01-691 (rel. March 16, 2001).
The Public Notice (including the Programmatic Agreement) is available
for inspection and copying during normal business hours in the FCC
Reference Center, 445 Twelfth Street, SW., Washington DC. The complete
text may be purchased from the Commission's copy contractor,
International Transcription Service, Inc., 1231 20th Street, NW.,
Washington DC. 20036, (202) 857-3800. The document is also available
via the internet at: http://www.fcc.gov/wtb/siting.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Appendix A to the Public Notice
Nationwide Programmatic Agreement for the Collocation of Wireless
Antennas
Executed by
The Federal Communications Commission, The National Conference of State
Historic Preservation Officers and The Advisory Council on Historic
Preservation
Whereas, the Federal Communications Commission (FCC) establishes
rules and procedures for the licensing of wireless
[[Page 17555]]
communications facilities in the United States and its Possessions
and Territories; and,
Whereas, the FCC has largely deregulated the review of
applications for the construction of individual wireless
communications facilities and, under this framework, applicants are
required to prepare an Environmental Assessment (EA) in cases where
the applicant determines that the proposed facility falls within one
of certain environmental categories described in the FCC's rules (47
C.F.R. Sec. 1.1307), including situations which may affect
historical sites listed or eligible for listing in the National
Register of Historic Places (``National Register''); and,
Whereas, Section 106 of the National Historic Preservation Act
(16 U.S.C. Secs. 470 et seq.) (``the Act'') requires federal
agencies to take into account the effects of their undertakings on
historic properties and to afford the Advisory Council on Historic
Preservation (Council) a reasonable opportunity to comment; and,
Whereas, Section 800.14(b) of the Council's regulations,
``Protection of Historic Properties'' (36 CFR Sec. 800.14(b)),
allows for programmatic agreements to streamline and tailor the
Section 106 review process to particular federal programs; and,
Whereas, in August 2000, the Council established a
Telecommunications Working Group to provide a forum for the FCC,
Industry representatives, State Historic Preservation Officers
(SHPOs) and Tribal Historic Preservation Officers (THPOs), and the
Council to discuss improved coordination of Section 106 compliance
regarding wireless communications projects affecting historic
properties; and,
Whereas, the FCC, the Council and the Working Group have
developed this Collocation Programmatic Agreement in accordance with
36 CFR Section 800.14(b) to address the Section 106 review process
as it applies to the collocation of antennas (collocation being
defined in Stipulation I.A below); and,
Whereas, the FCC encourages collocation of antennas where
technically and economically feasible, in order to reduce the need
for new tower construction; and,
Whereas, the parties hereto agree that the effects on historic
properties of collocations of antennas on towers, buildings and
structures are likely to be minimal and not adverse, and that in the
cases where an adverse effect might occur, the procedures provided
and referred to herein are proper and sufficient, consistent with
Section 106, to assure that the FCC will take such effects into
account; and
Whereas, the execution of this Nationwide Collocation
Programmatic Agreement will streamline the Section 106 review of
collocation proposals and thereby reduce the need for the
construction of new towers, thereby reducing potential effects on
historic properties that would otherwise result from the
construction of those unnecessary new towers; and,
Whereas, the FCC and the Council have agreed that these measures
should be incorporated into a Nationwide Programmatic Agreement to
better manage the Section 106 consultation process and streamline
reviews for collocation of antennas; and,
Whereas, since collocations reduce both the need for new tower
construction and the potential for adverse effects on historic
properties, the parties hereto agree that the terms of this
Agreement should be interpreted and implemented wherever possible in
ways that encourage collocation; and
Whereas, the parties hereto agree that the procedures described
in this Agreement are, with regard to collocations as defined
herein, a proper substitute for the FCC's compliance with the
Council's rules, in accordance and consistent with Section 106 of
the National Historic Preservation Act and its implementing
regulations found at 36 CFR part 800; and
Whereas, the FCC has consulted with the National Conference of
State Historic Preservation Officers (NCSHPO) and requested the
President of NCSHPO to sign this Nationwide Collocation Programmatic
Agreement in accordance with 36 CFR Section 800.14(b)(2)(iii); and,
Whereas, the FCC sought comment from Indian tribes and Native
Hawaiian Organizations regarding the terms of this Nationwide
Programmatic Agreement by letters of January 11, 2001 and February
8, 2001; and,
Whereas, the terms of this Programmatic Agreement do not apply
on ``tribal lands'' as defined under Section 800.16(x) of the
Council's regulations, 36 CFR Sec. 800.16(x) (``Tribal lands means
all lands within the exterior boundaries of any Indian reservation
and all dependent Indian communities.''); and,
Whereas, the terms of this Programmatic Agreement do not
preclude Indian tribes or Native Hawaiian Organizations from
consulting directly with the FCC or its licensees, tower companies
and applicants for antenna licenses when collocation activities off
tribal lands may affect historic properties of religious and
cultural significance to Indian tribes or Native Hawaiian
organizations; and,
Whereas, the execution and implementation of this Nationwide
Collocation Programmatic Agreement will not preclude members of the
public from filing complaints with the FCC or the Council regarding
adverse effects on historic properties from any existing tower or
any activity covered under the terms of this Programmatic Agreement.
Now therefore, the FCC, the Council, and NCSHPO agree that the
FCC will meet its Section 106 compliance responsibilities for the
collocation of antennas as follows.
Stipulations
The FCC, in coordination with licensees, tower companies and
applicants for antenna licenses, will ensure that the following
measures are carried out.
I. Definitions
For purposes of this Nationwide Programmatic Agreement, the
following definitions apply.
A. ``Collocation'' means the mounting or installation of an
antenna on an existing tower, building or structure for the purpose
of transmitting and/or receiving radio frequency signals for
communications purposes.
B. ``Tower'' is any structure built for the sole or primary
purpose of supporting FCC-licensed antennas and their associated
facilities.
C. ``Substantial increase in the size of the tower'' means:
(1) The mounting of the proposed antenna on the tower would
increase the existing height of the tower by more than 10%, or by
the height of one additional antenna array with separation from the
nearest existing antenna not to exceed twenty feet, whichever is
greater, except that the mounting of the proposed antenna may exceed
the size limits set forth in this paragraph if necessary to avoid
interference with existing antennas; or
(2) The mounting of the proposed antenna would involve the
installation of more than the standard number of new equipment
cabinets for the technology involved, not to exceed four, or more
than one new equipment shelter; or
(3) The mounting of the proposed antenna would involve adding an
appurtenance to the body of the tower that would protrude from the
edge of the tower more than twenty feet, or more than the width of
the tower structure at the level of the appurtenance, whichever is
greater, except that the mounting of the proposed antenna may exceed
the size limits set forth in this paragraph if necessary to shelter
the antenna from inclement weather or to connect the antenna to the
tower via cable; or
(4) The mounting of the proposed antenna would involve
excavation outside the current tower site, defined as the current
boundaries of the leased or owned property surrounding the tower and
any access or utility easements currently related to the site.
I. Applicability
A. This Nationwide Collocation Programmatic Agreement applies
only to the collocation of antennas as defined in Stipulation I.A,
above.
B. This Nationwide Collocation Programmatic Agreement does not
cover any Section 106 responsibilities that federal agencies other
than the FCC may have with regard to the collocation of antennas.
III. Collocation of Antennas on Towers Constructed on or Before
March 16, 2001
A. An antenna may be mounted on an existing tower constructed on
or before March 16, 2001 without such collocation being reviewed
under the consultation process set forth under Subpart B of 36 CFR
Part 800, unless:
1. The mounting of the antenna will result in a substantial
increase in the size of the tower as defined in Stipulation I.C,
above; or
2. The tower has been determined by the FCC to have an effect on
one or more historic properties, unless such effect has been found
to be not adverse through a no adverse effect finding, or if found
to be adverse or potentially adverse, has been resolved, such as
through a conditional no adverse effect determination, a Memorandum
of Agreement, a programmatic agreement, or
[[Page 17556]]
otherwise in compliance with Section 106 and Subpart B of 36 CFR
Part 800; or
3. The tower is the subject of a pending environmental review or
related proceeding before the FCC involving compliance with Section
106 of the National Historic Preservation Act; or
4. The collocation licensee or the owner of the tower has
received written or electronic notification that the FCC is in
receipt of a complaint from a member of the public, a SHPO or the
Council, that the collocation has an adverse effect on one or more
historic properties. Any such complaint must be in writing and
supported by substantial evidence describing how the effect from the
collocation is adverse to the attributes that qualify any affected
historic property for eligibility or potential eligibility for the
National Register.
IV. Collocation of Antennas on Towers Constructed After March 16,
2001
A. An antenna may be mounted on an existing tower constructed
after March 16, 2001 without such collocation being reviewed under
the consultation process set forth under Subpart B of 36 CFR Part
800, unless:
1. The Section 106 review process for the tower set forth in 36
CFR Part 800 and any associated environmental reviews required by
the FCC have not been completed; or
2. The mounting of the new antenna will result in a substantial
increase in the size of the tower as defined in Stipulation I.C,
above; or
3. The tower as built or proposed has been determined by the FCC
to have an effect on one or more historic properties, unless such
effect has been found to be not adverse through a no adverse effect
finding, or if found to be adverse or potentially adverse, has been
resolved, such as through a conditional no adverse effect
determination, a Memorandum of Agreement, a programmatic agreement,
or otherwise in compliance with Section 106 and Subpart B of 36 CFR
Part 800; or
4. The collocation licensee or the owner of the tower has
received written or electronic notification that the FCC is in
receipt of a complaint from a member of the public, a SHPO or the
Council, that the collocation has an adverse effect on one or more
historic properties. Any such complaint must be in writing and
supported by substantial evidence describing how the effect from the
collocation is adverse to the attributes that qualify any affected
historic property for eligibility or potential eligibility for the
National Register.
V. Collocation of Antennas on Buildings and Non-Tower Structures
Outside of Historic Districts
A. An antenna may be mounted on a building or non-tower
structure without such collocation being reviewed under the
consultation process set forth under Subpart B of 36 CFR Part 800,
unless:
1. The building or structure is over 45 years old; \1\ or
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\1\ Suitable methods for determining the age of a building
include, but are not limited to: (1) obtaining the opinion of a
consultant who meets the Secretary of Interior's Professional
Qualifications Standards (36 CFR Part 61) or (2) consulting public
records.
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2. The building or structure is inside the boundary of a
historic district, or if the antenna is visible from the ground
level of the historic district, the building or structure is within
250 feet of the boundary of the historic district; or
3. The building or non-tower structure is a designated National
Historic Landmark, or listed in or eligible for listing in the
National Register of Historic Places based upon the review of the
licensee, tower company or applicant for an antenna license; or
4. The collocation licensee or the owner of the tower has
received written or electronic notification that the FCC is in
receipt of a complaint from a member of the public, a SHPO or the
Council, that the collocation has an adverse effect on one or more
historic properties. Any such complaint must be in writing and
supported by substantial evidence describing how the effect from the
collocation is adverse to the attributes that qualify any affected
historic property for eligibility or potential eligibility for the
National Register.
B. Subsequent to the collocation of an antenna, should the SHPO/
THPO or Council determine that the collocation of the antenna or its
associated equipment installed under the terms of Stipulation V has
resulted in an adverse effect on historic properties, the SHPO/THPO
or Council may notify the FCC accordingly. The FCC shall comply with
the requirements of Section 106 and 36 CFR Part 800 for this
particular collocation.
VI. Reservation of Rights
Neither execution of this Agreement, nor implementation of or
compliance with any term herein shall operate in any way as a waiver
by any party hereto, or by any person or entity complying herewith
or affected hereby, of a right to assert in any court of law any
claim, argument or defense regarding the validity or interpretation
of any provision of the National Historic Preservation Act (16
U.S.C. Secs. 470 et seq.) or its implementing regulations contained
in 36 CFR Part 800.
VII. Monitoring
A. FCC licensees shall retain records of the placement of all
licensed antennas, including collocations subject to this Nationwide
Programmatic Agreement, consistent with FCC rules and procedures.
B. The Council will forward to the FCC and the relevant SHPO any
written objections it receives from members of the public regarding
a collocation activity or general compliance with the provisions of
this Nationwide Programmatic Agreement within thirty (30) days
following receipt of the written objection. The FCC will forward a
copy of the written objection to the appropriate licensee or tower
owner.
VIII. Amendments
If any signatory to this Nationwide Collocation Programmatic
Agreement believes that this Agreement should be amended, that
signatory may at any time propose amendments, whereupon the
signatories will consult to consider the amendments. This agreement
may be amended only upon the written concurrence of the signatories.
IX. Terminataion
A. If the FCC determines that it cannot implement the terms of
this Nationwide Collocation Programmatic Agreement, or if the FCC,
NCSHPO or the Council determines that the Programmatic Agreement is
not being properly implemented by the parties to this Programmatic
Agreement, the FCC, NCSHPO or the Council may propose to the other
signatories that the Programmatic Agreement be terminated.
B. The party proposing to terminate the Programmatic Agreement
shall notify the other signatories in writing, explaining the
reasons for the proposed termination and the particulars of the
asserted improper implementation. Such party also shall afford the
other signatories a reasonable period of time of no less than thirty
(30) days to consult and remedy the problems resulting in improper
implementation. Upon receipt of such notice, the parties shall
consult with each other and notify and consult with other entities
that are either involved in such implementation or that would be
substantially affected by termination of this Agreement, and seek
alternatives to termination. Should the consultation fail to produce
within the original remedy period or any extension, a reasonable
alternative to termination, a resolution of the stated problems, or
convincing evidence of substantial implementation of this Agreement
in accordance with its terms, this Programmatic Agreement shall be
terminated thirty days after notice of termination is served on all
parties and published in the Federal Register.
C. In the event that the Programmatic Agreement is terminated,
the FCC shall advise its licensees and tower construction companies
of the termination and of the need to comply with any applicable
Section 106 requirements on a case-by-case basis for collocation
activities.
X. Annual Meeting of the Signatories
The signatories to this Nationwide Collocation Programmatic
Agreement will meet on or about September 10, 2001, and on or about
September 10 in each subsequent year, to discuss the effectiveness
of this Agreement, including any issues related to improper
implementation, and to discuss any potential amendments that would
improve the effectiveness of this Agreement.
XI. Duration of the Programmatic Agreement
This Programmatic Agreement for collocation shall remain in
force unless the Programmatic Agreement is terminated or superseded
by a comprehensive Programmatic Agreement for wireless
communications antennas.
Execution of this Nationwide Programmatic Agreement by the FCC,
NCSHPO and the Council, and implementation of its terms, evidence
that the FCC has afforded the Council an opportunity to comment on
the collocation as described herein of antennas covered under the
FCC's rules, and that the FCC has taken
[[Page 17557]]
into account the effects of these collocations on historic
properties in accordance with Section 106 of the National Historic
Preservation Act and its implementing regulations, 36 CFR part 800.
Federal Communications Commission.
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Advisory Council of Historic Preservation.
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National Conference of State Historic Preservation Officers.
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[FR Doc. 01-7875 Filed 3-30-01; 8:45 am]
BILLING CODE 6712-01-P