FCC IN FINAL STRETCH ON RELEASING NOTICE ON TOWER SITING PACT

Federal and state regulators and industry and tribal representatives had been moving toward agreement last year to streamline siting decisions for wireless and broadcast towers. Progress on issue had been shaped, in part, by lingering concerns of tribal historic preservation officers on how agreement was being crafted and their lack of past input in siting decisions. Draft proposal early last year had been state prototype that would have given each state sign-off on siting decision process. But in recent months, model that’s at heart of negotiations has been nationwide agreement. Telecom working group, which includes Advisory Council on Historic Preservation (ACHP), FCC, industry representatives, state historic preservation officers and tribes, held 4-hour, occasionally contentious meeting on agreement Thurs., sources said.

Concerns raised by some tribal representatives remain sticking points on agreement, which requires sign-offs from FCC and ACHP, several sources said. Navajo Nation has proposed language that no tower sites would be excluded from tribal review, confidential treatment of tribal review and no standard for Indian tribe review, source said. Representative of Navajo Nation voiced concern to working group members last week that part of National Historic Preservation Act (NHPA) that applied to tribes hadn’t fully been taken into account in drafting agreement. Sec. 106 of NHPA requires federal agencies to consider effects of undertakings, including tower construction and expansion, on historic properties. Point of program agreement has been to streamline Sec. 106 siting agreements, spelling out for both state historic preservation officers and industry what is needed for compliance. Navajo Nation has raised concerns that in 1992 Congress granted tribes right to be consulted whenever federal agencies, in conducting Sec. 106 activities, proposed action that would affect tribal property of religious or cultural significance.

Drafts of program agreement have listed tower projects that would be excluded from review, industry source said. Point of Navajo proposal is that even for most of those excluded projects, tribes would be notified, in part based on concerns that past projects hadn’t included adequate notification to affected tribes. Industry has raised objections to that proposal. “Industry has pointed out that if you have to send out notices on projects that are excluded, they're not really excluded,” source said.

Overall, working group has made “great deal of progress on many, many issues,” source said. “On a few issues -- the toughest ones -- areas still need to be worked out.” For some tribal representatives, most contentious issue has been including provision in document that would allow tribes to charge fees for consultation. Others are interested in provision that would address extent to which past tower sitings might not have involved tribal consultations. Treatment of visual impact of towers has been concern of industry in recent weeks, source said. Issue is what constitutes area of potential effect, which is geographic area in which tribal or state historic preservation officer examines potential impact. Provision would stipulate geographic visual range of potential effect. National Park Service apparently had raised concerns about draft language in recent iterations of proposed agreement not being stringent enough, causing that part of draft to be revised, source said.

More broadly, Kunze told FCBA that siting-related policy areas were ones to which his div. had devoted considerable resources. In next year, “we'll be addressing issues on migratory birds, which are a rapidly growing part of our business.” Div. also will continue to work with industry and Indian tribes to try to reach understanding on reasonable processes that take into account factors such as govt.-to- govt. relationships between tribes and federal govt., Kunze said. Asked whether FCC was considering taking comprehensive look at how to update its rules to take more account of Migratory Bird Act, NHPA and other environmental protection measures, Kunze said Commission staff in was “constantly thinking about the kinds of questions you are asking.” Similar issues have been raised by state and govt. regulators and nongovernmental organizations, he said. “It’s fair to say that we're constantly thinking about that,” he said. “I can’t tell you about any particular action that I think may come out of this. It’s a very active issue.” He called that policy area “one of the most important” that div. dealt with.

D'Wana Terry, chief of Public Safety & Private Wireless Div., told FCBA that her division’s top priorities for this year included: (1) Proposal on mitigating interference to public safety operators at 800 MHz, which has included proposed realignments of operators at 700, 800 and 900 MHz. (2) Further notice on 50 MHz at 4.9 GHz allocated to high- speed data operations for public safety. (3) “Winding down” of private land mobile radio spectrum audit below 512 MHz. Effort has “done a lot to clean up the database” and put licensees on notice that FCC filing requirements “mean something,” Terry said. FCC officials have noted in last year that spectrum audit has resulted in return of substantial number of unused call signs. Terry said another top priority for her division is follow-up to proposal last year by Multipoint Distribution Service and Instructional TV Fixed Service licensees urging FCC to update rules for that spectrum by moving away from “broadcast style” approach.

Among progress steps that FCC made in tower siting last year was hiring of former Ohio SHPO Amos Loveday as cultural resources specialist in Wireless Bureau, Kunze said. Relatively new area for his unit involves sunsetting of wireless spectrum cap as of Jan. 1, he said. His unit handles licensing issues such as transfers and assignments involved with mergers. Phase-out of cap means that evaluation of such transactions is done on case-by-case basis. Kunze said spectrum cap removal hadn’t resulted in flood of wireless mergers. “We had been quaking with fear at the resource implications of the demise of the spectrum cap,” he said. “At the moment it seems to have passed with a whimper, perhaps because of the state of the economy.” Among factors for industry to keep in mind when proposing license transfers in future is to furnish information to FCC as early in process as possible, Kunze said.