TR Daily Industry, Tribes Disagree on Twilight Towers Program Comment
Monday, September 28, 2020

Industry, Tribes Disagree on Twilight Towers Program Comment

The wireless industry and tribal and state entities disagree on whether the Advisory Council on Historic Preservation should approve a proposed Program Comment submitted by the FCC covering collocation on thousands of twilight towers, with the industry supporting the document and tribes, state historic preservation officers (SHPOs), and the National Trust for Historic Preservation (NTHP) opposing it and blasting the FCC for the process it has used.

The Commission submitted the draft Program Comment to the ACHP last month (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.

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 of the National Historic Preservation Act (NHPA) 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).

The proposed Program Comment says that collocation would be permitted on twilight towers unless seven conditions exist (which are also included in the collocation NPS) including (1) "[t]he 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) "[t]he 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 …" The FCC also said it has conducted extensive tribal and SHPO outreach concerning twilight towers.

"The time is ripe for the ACHP to act. The Program Comment is the culmination of more than six years of effort by the FCC to work cooperatively with interests representing SHPOs, THPOs [tribal historic preservation officers], Tribes, and wireless providers to find a reasonable and balanced solution that will lead to more effective use of Twilight Towers to benefit the public by improving the nation's wireless communications networks," CTIA said in its comment to ACHP. "Over those many years, all stakeholders have had ample opportunity to propose solutions to a lingering regulatory obstacle that has frustrated improved use of this infrastructure. The Program Comment resolves a barrier to broadband deployment that has existed for more than 15 years, and in a way that fully protects historic preservation interests."

CTIA said that the Program Comment would enable access to twilight towers by safeguarding "the historic preservation interests that the NHPA protects," and it lauded the FCC's tribal outreach efforts.

The Competitive Carriers Association said that "individualized Section 106 review of those collocations poses an unnecessary obstacle to the deployment of communications technologies, particularly in rural and remote areas, that provide important public benefits. Case-by-case review imposes significant costs and delays for service providers, without commensurate public benefits. Opening up these towers for collocation would enable faster and less costly deployment by making infrastructure and reducing the need to construct new towers. Efficient deployment of communications facilities via collocation is particularly important now, as the COVID-19 pandemic has increased public reliance on wireless communications services while posing new and challenging obstacles for the construction of new towers."

"The Program Comment will make Twilight Towers available for collocation at the very time that additional infrastructure platforms are in high demand for the First Responder Network Authority (FirstNet), network densification, 5G deployments, and other advanced technologies," said the Wireless Infrastructure Association. "The towers in question were built in compliance with the rules as they existed at that time the towers were constructed. However, because the FCC's rules during the 'Twilight' period from 2001 to 2005 did not expressly mandate State Historic Preservation Office (SHPO) or Tribal consultation, these towers have not been available for collocation, and they have not been available for enabling network densification. As a result, these towers have not been available for adding additional carrier capacity in more areas, which would provide additional choices for consumers. More importantly, they have not been available for enhancing public safety operations like FirstNet."

WIA added, "The Program Comment serves the dual goals of promoting historic preservation and delivering advanced communications services and technologies nationwide. Addressing this legal quandary that has existed for almost two decades, would make these towers available so networks can be upgraded, especially in hard-to-reach areas that lack sufficient coverage. Indeed, Twilight Towers have been in place for almost two decades, and, in the vast majority of cases, there have been no adverse effects from these towers. Furthermore, making these towers available for collocation would advance the ACHP's goals for historic preservation by obviating the need for the construction of a new tower to provide similar service coverage, which avoids the potential impact of new tower construction on the environment and on locations with historical and cultural significance."

"By creating a path to open these towers for additional wireless deployments, the Program Comment will provide significant public benefits," said T-Mobile US, Inc. "It has been estimated that there are over 4,000 Twilight Towers in the United States, and that these towers could support an additional 6,500 antennas. By finally making these towers available for collocation and promoting the more effective use of existing infrastructure, consumers will benefit from increased network coverage and access to new and enhanced wireless services. At the same time, the Program Comment promotes historic preservation goals. In particular, while it provides for Section 106 review of collocations in appropriate circumstances, it also facilitates collocations on existing towers, which will 'reduce the need for new towers, thereby avoiding the impact of new tower construction on the environment and on locations with historical and cultural significance.'"

"In adopting the Proposed Program Comment, the FCC noted that collocating on Twilight Towers constructed between 15 and 19 years ago is unlikely to cause any new adverse effects," said American Tower Corp. "Allowing collocation on Twilight Towers as provided in the Proposed Program Comment furthers the key objectives of the FCC, ACHP, and wireless industry to encourage collocation. Further, the Proposed Program Comment contains key limitations and protections that will help to ensure that collocations on these assets do not adversely affect historic properties. Therefore, American Tower strongly encourages the ACHP to adopt the FCC's Proposed Program Comment."

But tribes, SHPOs, and the National Trust for Historic Preservation expressed opposition to the draft program comment and echoed their concerns about the FCC's outreach efforts.

The National Association of Tribal Historic Preservation Officers (NATHPO), which supports the ACHP declining to comment on the FCC's proposed document, said that it "is strongly opposed to the Program Comment, specifically as proposed and more generally as a means to circumvent the FCC's Section 106 obligations set forth in legally-binding nationwide programmatic agreements. … As proposed, the Program Comment would, in effect, exempt the collocation of antennas on Twilight Towers from Section 106 review. The Program Comment treats collocations on Twilight Towers essentially the same as collocations on other, non-Twilight Towers and requires Section 106 review in limited circumstances, much in the same way as set forth in the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas ('the Collocation NPA'). This is not an acceptable remedy to the Twilight Towers problem.

"Twilight Towers have never undergone Section 106 review; their potential adverse effects on historic properties have never been assessed," the NATHPO added. "Since the FCC and the telecommunications industry have refused to provide the location of the 5,000 or more Twilight Towers to Tribes, Tribal Historic Preservation Officers ('THPOs'), and Native Hawaiian organizations ('NHO'), it is impossible to know the extent of the harm they have caused historic properties, specifically properties of traditional religious and cultural significance.

"The FCC should not be rewarded for its past unlawful behavior, and this Program Comment would do just that. It would condone the FCC's failure to uphold its Section 106 responsibilities by excusing it from further Section 106 obligations related to Twilight Towers. This is unacceptable," the filing added. "The FCC and the telecommunications industry complain that their inability to collocate on Twilight Towers is a hindrance to wireless infrastructure buildout. Yet, this is a problem entirely of their own doing. Had the FCC followed the law in the first place and required Section 106 reviews for tower construction prior to 2005, today's Twilight Towers would not exist and the problems they cause might not either. NATHPO cannot support this Program Comment because it absolves the FCC of Section 106 responsibility and rewards its continued unlawful conduct."

NATHPO added that it "is also deeply concerned with the process by which this Program Comment was developed. The Program Comment is similar to the draft proposed by the FCC in 2017. After a disastrous attempt to engage in consultation with Tribes, THPOs, and NHOs at that time, the FCC suspended development of that Program Comment. Over the intervening two years, the FCC never reached out to NATHPO, our members, other Tribes and THPOs, and NHOs regarding its original proposed program comment, the Twilight Towers issue, or this new Program Comment. It was not until August 2020 that the FCC finally reached out to THPOs to discuss Twilight Towers.

"On August 20, 2020, the FCC held a video conference with Tribes and THPOs (to our knowledge the FCC did not meet with NHOs) to discuss Twilight Towers. This meeting was held only four days before the FCC submitted this Program Comment to the ACHP. Yet, the FCC was not clear to the participants in that video conference that it intended to submit the Program Comment to the ACHP. This video conference was a disaster," the filing said. "FCC treated Tribal leaders, representatives, and THPOs with condescension and halfway through the meeting declared that it was actually a government-to-government consultation, despite never formally inviting any Tribal leaders or describing as such beforehand. The Program Comment was developed behind closed doors, without appropriate, meaningful, and early consultation with Tribes, THPOs, and NHOs."

The NATHPO also complained that "[t]he program comment process itself also does not allow enough opportunity for the ACHP to engage in the necessary consultation with Tribes, THPOs, and NHOs as required under its regulations. The forty-five-day review period, and the ACHP's inability to extend the timeline without the FCC's consent, ensures that Tribal and Native Hawaiian voices are not heard and meaningfully taken into account in the process. For an issue as contentious as Twilight Towers, this is not the appropriate path forward. More consultation is needed, not less. Other program alternatives may prove better suited to resolve the Twilight Towers issue; however, the specific vehicle the FCC uses to resolve this issue should be the subject of robust and meaningful consultation, which is currently lacking from this protracted and broken process."

NATHPO said it "is also concerned with the FCC's attempt to use a program comment to exempt itself from Section 106 review and to supersede its obligations assumed under the Collocation NPA. Programmatic agreements are legally binding documents that prescribe an agency's Section 106 compliance for a specific undertaking, program, or series of undertakings. They are executed by the agency, the relevant THPO or SHPO, and, sometimes the ACHP. Nationwide programmatic agreements are executed by the agency, the ACHP, and the National Conference of State Historic Preservation Officers ('NCSHPO'). The agency that executes a programmatic agreement has no discretion in deciding whether to comply with the terms of the agreement."

The NCSHPO said it "has numerous objections" to the proposed Program Comment and said the ACHP should reject it or decline to issue it. It also discussed the timeline before the FCC to submitted the draft Program Comment to ACHP last month "to demonstrate what in our view has been a highly flawed, non-responsive process undertaken by the FCC to essentially try to force a Program Comment upon the membership of the ACHP over the well-known objections raised by states and tribes. Issuing a Program Comment based upon these circumstances alone gives us great pause. Coupled with the inherent flaws with the ACHP's Program Comment process, which have recently been vividly illuminated, we find it even harder to accept."

"As we previously have stated several times to both the FCC and the ACHP, overall, we agree that it would be advantageous for industry to be able to utilize existing towers to collocate equipment. But we believe that an approach that simply excludes currently non-compliant towers from review and repeatedly attempts to validate some industry members' claims that their Section 106 responsibilities were 'unclear,' is inappropriate," the NCSHPO added. "We also believe this supposed lack of clarity is both an exercise in revisionist history and a poor excuse. Thousands of towers went through the Section 106 process both prior to and during the 'Twilight' period of 2002-2005."

"One of the primary assumptions made by the FCC in the preparation of the proposed Program Comment is that these non-compliant towers have been in place for 15 or more years and few adverse effects have been brought to their attention. This assumption is flawed," the filing added. "Even if we were to accept a high likelihood that many towers may have resulted in no adverse effects, in some instances adverse effects could be present but not brought to anyone's attention. Neither SHPOs nor tribes have any idea which or how many of the many thousands of towers within their jurisdictions fall with in this 'twilight' category. Without a process to even consider effects, ignorance appears to be the only defense. A little known and opaque 'complaint' process to alert the FCC of potential adverse effects, with no disclosed process to address those complaints is not good enough. Bypassing due process, because an agency is unaware of any issue, or because they think too much time has passed, is simply not the right thing to do. It also sets a terrible precedent."

The filing also complained that the proposed Program Comment fails to specify how any problems with towers will be taken into account.

The Cherokee Nation asked the ACHP to "either decline to comment or issue program comments on the proposal by the Federal Communications Commission ('FCC') to ensure that the underlying twilight towers and associated collocations are subject to Section 106 compliance. The FCC's summary accurately reflects the Nation's concerns that twilight towers constructed between 2001 and 2005 fail to meet compliance under the National Historic Preservation Act … and its implementing regulations (36 C.F.R. Part 800), and that the FCC has yet to produce a list of twilight towers to initiate steps toward compliance. However, the Nation respectfully disagrees with the FCC that the application of Section 106 was unclear during the time in question, and that adequate Tribal consultation occurred on a government-to-government basis to address twilight towers."

It added that its "concerns … are a continuation of previous issues with the nature of government-to-government consultation between the FCC and Tribes. While the FCC's summary of Tribal outreach appears extensive, the topic of twilight towers either was treated tangentially or unresolved throughout our discussions."

"The proposed Program Comment erodes the intent of the NHPA, the Section 106 process, and the relationship between the Tribes and the Federal government. The FCC should require the telecommunications industry to accept their burden. The FCC should follow the NHPA and its implementing regulations," said Osage Nation Historic Preservation Office. "The Tribes must be consulted. If there are challenges in the process, the challenges should be addressed instead of eliminating the process. The Osage Nation strongly urges the Advisory Council on Historic Preservation to either not vote or to vote no on the proposed Program Comment."

The National Trust for Historic Preservation complained that "the FCC's proposal would constitute a de facto exemption from Section 106—acknowledged as an 'exclusion'—for thousands of Twilight Towers. In order to qualify for a program comment, the Section 106 regulations require the federal agency to 'specify the steps the agency official will take to ensure that the effects are taken into account,' 36 C.F.R. § 800.14(3)(1). Contrary to this requirement, the FCC proposal would not take any steps to ensure that the effects of Twilight Towers are taken into account. In fact, the FCC's Twilight Tower proposal would not even qualify for an exemption under the Section 106 regulations, because exemptions can only be approved if the effects of the undertakings are 'likely to be minimal or not adverse.' … Yet the FCC's proposal would exempt all Twilight Towers regardless of the magnitude of their adverse effects, with no mitigation, and no effort even to prepare a database of the non-compliant towers. If approved, this would set an unfortunate precedent for other agencies who want to avoid Section 106 compliance.

"For these reasons, we strongly agree with the objections and comments that have already been submitted by the National Association of Tribal Historic Preservation Officers (NATHPO) and the National Conference of State Historic Preservation Officers (NCSHPO), as well as by a number of individual SHPOs. We also support the proposal by the ACHP to 'decline to comment' in response to the FCC's request at this time, and the National Trust is prepared to vote in support of the statement currently being prepared by ACHP staff." —Paul Kirby, [email protected]

MainStory: FCC FederalNews WirelessDeployment

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