The Advisory Council on Historic Preservation (ACHP) has declined to comment on a program comment submitted by the FCC covering collocation on thousands of twilight towers, calling the document and the FCC’s process for drafting it "substantially deficient."
However, ACHP said it was willing to work with the Commission on a revised document "that contains a streamlined process for reviewing the underlying twilight towers when they are being proposed for collocation, along with a detailed process for State and Tribal Historic Preservation Officers, Indian tribes, Native Hawaiian organizations, and the general public to file complaints about specific twilight towers and have such complaints resolved in a timely fashion."
The Commission submitted the draft program comment to the ACHP in August (TR Daily, Sept. 14). Construction on twilight towers occurred between adoption of a 2001 collocation nationwide programmatic agreement (NPA) and the effective date of a follow-up 2005 wireless facilities NPA. They have not been documented as having undergone review under section 106 of the National Historic Preservation Act (NHPA).
In 2017, the FCC adopted a public notice seeking views on a draft program comment that would exempt twilight towers from routine historic preservation review under section 106 as long as certain conditions are met. The action would enable collocation on thousands of additional towers. The item also clarified that the FCC wouldn't take an enforcement action related to the deployment of twilight towers (TR Daily, Dec. 14, 2017). But the agency did not submit the item to the ACHP until August.
A letter dated yesterday from ACHP Chairman Aimee Jorjani to FCC Commissioner Brendan Carr, who is the point person on wireless infrastructure issues at the Commission, echoed complaints by states and tribes with the draft program comment and the process used by the Commission, including its consultation with tribes.
"Through a program comment, a federal agency can request that the ACHP comment on a category of projects (undertakings) in lieu of the agency carrying out individual Section 106 reviews on a case-by-case basis. The ACHP must either issue a program comment or decline to do so within 45 days of the request (assuming the requesting agency does not provide an extension or the ACHP requests further information)," Ms. Jorjani noted in her letter. "This action is taken by vote of the full membership of the ACHP. When the ACHP declines to comment, the requesting agency continues its Section 106 compliance as it had before the request. A new request, either by the agency or by the ACHP on its own initiative, would restart the mentioned 45-day clock." ACHP in this case asked the FCC for additional time to review the draft program comment, but the Commission did not respond to the request, ACHP said.
"The ACHP members gave careful consideration to the FCC’s August 24th request and decided by a near-unanimous vote on October 5, 2020 to decline to comment," she said. ACHP said the vote was 19 in favor, one in opposition, one abstention, and two not voting.
"In reaching this decision, ACHP members agreed that achieving resolution on the use of twilight towers is more important than ever, given the increasing reliance on broadband access for telehealth, remote learning and public safety," Ms. Jorjani said. "Given that 46,000 towers were approved and constructed in 2019 (according to CTIA), I believe it an entirely reasonable and achievable goal to develop a simple process now, in collaboration with FCC, that would enable collocations on 4,000 – 5,000 in a timely manner.
"However, the ACHP membership believed that the program comment as submitted was substantively deficient, as was the process the FCC pursued leading to its submission to the ACHP," she added. "In declining to comment, the members did not believe the ACHP had the time needed to work with FCC and consulting parties to revise the proposal in [a] way that would provide a more appropriate resolution of the issues.
"A fundamental concern among states and Indian tribes, as well as many of our members, was the lack of sufficient measures to consider past and ongoing effects to historic properties that may have occurred as a result of the original construction of these towers, and the lack of clear measures to resolve such effects when or if they are identified," the letter noted. "The need for such measures [was] underscored by the indications we received in consultation with states and Indian tribes that numerous twilight towers which may be having lasting effects to historic properties are known, and efforts to resolve such effects have been unsuccessful. The members cited several other reasons for these conclusions, including the long-standing controversial nature of the issue and appropriateness of utilizing a Program Comment for such issues; the lack of information on the tower numbers, locations, and potential for past or existing adverse effects to historic properties; questions on how the FCC would know when to apply said program comment lacking such information; the need for further detail on how complaints about the underlying twilight towers would be processed and resolved in a timely fashion; and the limited coordination with the ACHP since the FCC published a public notice on this matter in December 2017 and met with its members in March 2018."
But Ms. Jorjani stressed that "the ACHP members expressed their commitment to working closely with the FCC and stakeholders to develop a revised program comment within a reasonable timeframe. Should the FCC accept the ACHP’s offer to collaborate, I would urge the FCC to consider a revised program comment that contains a streamlined process for reviewing the underlying twilight towers when they are being proposed for collocation, along with a detailed process for State and Tribal Historic Preservation Officers, Indian tribes, Native Hawaiian organizations, and the general public to file complaints about specific twilight towers and have such complaints resolved in a timely fashion. The membership proposed 90 days to work on this effort, to start from the FCC's acceptance of our offer, with a vote on a revised program comment to follow shortly afterward.
"Should the FCC determine it appropriate to engage us under such a plan, the ACHP requests that the FCC provide additional information on the following:  how would it … determine when to apply a program comment to collocations on twilight towers when it lacks information on the numbers and locations of such twilight towers; and  specific details on how the FCC would process and, in a timely fashion, resolve complaints about twilight towers, and how it would ensure such a process is well-known and understood by State and Tribal Historic Preservation Officers, Indian tribes, Native Hawaiian organizations, and the general public.
"As Chairman, I am prepared to appoint a subgroup of ACHP members to participate in the consultation process if the FCC accepts this offer," Ms. Jorjani added. "I believe this would expedite the development of an acceptable program comment and ensure effective communication as we move forward. The membership and I am very supportive of the FCC’s broadband goals. We take infrastructure needs seriously and cannot ignore the potential of these 4,000 – 5,000 towers for meeting today's expanded demand. The ACHP is committed to assisting the FCC in creating a solution that reflects the need for broadband access while including reasonable consideration of preservation issues. We look forward to receiving a positive response from you regarding a path forward."
In comments filed with the ACHP on the draft program comment, tribes, state historic preservation officers, and the National Trust for Historic Preservation expressed opposition to the document, saying it would fail to ensure that adverse effects of twilight towers were considered. They also said that the FCC’s consultation process had been inadequate (TR Daily, Sept. 28) – the latest of a number of instances when tribes, SHPOs, and others have faulted the FCC’s outreach efforts on historic preservation issues. They urged the ACHP not to approve the program comment.
But industry entities endorsed the draft program comment.
In response to ACHP’s decision, Mr. Carr said today that he was "proud of the FCC’s efforts, including our staff’s months of good-faith negotiations with ACHP. We will continue to focus on modernizing our infrastructure rules so that more Americans have access to fast Internet."
Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers, told TR Daily today that she is pleased that the ACHP has declined to comment on the program comment.
"We actually think a program comment, in general, is not the way to handle something as complex and as charged as twilight towers," she said. "It would represent a change to the procedures established in the collocation nationwide programmatic agreement," which she said has "a solid process backing it up that involves stakeholder and tribal input."
"It seems like FCC is trying to trot out this program comment that they wrote … with very little changes and ram it through again at, you know, the eleventh hour," Ms. Grussing said. "It wasn’t then, and it’s not now, an acceptable solution to the issue of twilight towers."
"We look forward to continuing to work with ACHP and FCC to find a way forward that will actually represent a solution to this issue," she added.
Erik Hein, executive director of the National Conference of State Historic Preservation Officers, said, "We support the ACHP’s decision to decline to comment, but to work towards a solution. We have repeatedly offered to work with the FCC to develop a reasonable process to make towers available for collocation that, due to a failure to comply with the National Historic Preservation Act, are currently off limits. Instead of a blanket exemption, as proposed by the FCC, however, we seek a more responsible and lasting solution."
But Jonathan Adelstein, president and chief executive officer of the Wireless Infrastructure Association, said that "WIA is disappointed that the ACHP decided to ignore a reasonable and consensus resolution to the twilight towers issue that has persisted for two decades. Freeing these towers for collocation would help deliver advanced broadband across the country, including in many rural areas. Winning the race to 5G is a national imperative, and the ACHP’s action will only slow us down and allow China and others to catch up. The FCC staff, led by Commissioner Carr, worked for four years to develop this unanimous FCC compromise, following the procedures, opening up a public comment period, and convening multiple meetings with stakeholders. We thank the FCC and the Trump Administration for their continued commitment to 5G deployment."
"The FCC unanimously proposed a balanced approach to resolving the regulatory uncertainty that has slowed wireless deployments for nearly two decades," said Scott Bergmann, senior vice president-regulatory affairs for CTIA. "The ACHP’s decision is a disappointing missed opportunity to speed the public’s access to wireless services while safeguarding important historic and cultural preservation interests." —Paul Kirby, [email protected]
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