FCC Seeks Comment on Revising Historic Preservation Review Process for Small Facility Deployments

The FCC has invited comment on proposed changes to streamline the historic review process for collocations of small wireless communications facilities, including deployments on utility poles, streetlights, and on structures in existing utility rights-of-way. Comments are due September 28, 2015.

Background

The FCC’s rules provide that an applicant or licensee that proposes to construct a new communications tower or collocate an antenna on an existing structure must certify that grant of the authorization will not have an adverse effect on the environment, including on historic properties. In order to make such a determination with respect to impacts on historic properties, an applicant or licensee must follow certain procedures adopted by the FCC, such as consulting with Native American tribes, identifying historic properties that could be affected and evaluating the potential impacts, and seeking approval from the relevant SHPO. Failure to adhere to these procedures can result in an FCC enforcement action, including fines, forfeitures, and license revocation.

Discussion

In 2001, the FCC adopted a Collocation Agreement that exempts most collocations on existing structures from the historic property review requirement. The FCC proposes to amend the 2001 Collocation Agreement to exclude additional deployments of small wireless communications facilities from the historic review process. Specifically, the FCC seeks comment on the following proposals:

• Small Deployments Not on Historic Properties or in or near Historic Districts: Exclude small wireless communications facility deployments on any building or structure more than 45 years of age, so long as the deployment meets certain size restrictions, involves no new ground disturbance, and is not on a historic property or in or within 250 feet of a historic district.

• Minimally Visible Small Deployments on Historic Properties or in or near Historic Districts: Exclude small wireless communications facility deployments on any structure even if the underlying structure is a historic property or is in or near a historic district, provided that the collocation: (1) meets specified size or volume limits; (2) causes no new ground disturbance; (3) meets certain visibility restrictions; (4) complies with the Secretary of the Interior’s standards and guidelines for historic preservation; and (5) complies with any conditions applicable to any pre-existing antennas in the vicinity of the new collocation that were imposed to directly mitigate or prevent the facility’s effects on the historic property.

• Deployments on Certain Structures that are Historic Properties or in or near Historic Districts: Exclude small wireless communications facility deployments on certain structures even if the underlying structure is a historic property or in or near a historic district, regardless of whether the new collocation would be visible from public streets or places. The FCC anticipates this exclusion would be limited to: (1) deployments on certain structures, such as utility poles, non-historic light posts, and traffic lights; (2) deployments in certain locations in a historic district, such as utility and communications rights-of-way; and (3) replacements of existing facilities in historic districts that meet certain size limits.

Any amendments proposed by the FCC will require the concurrence of the other parties to the original 2001 Collocation Agreement, which are the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers. Any amendments to the 2001 Collocation Agreement would not limit state and local governments’ authority to enforce their own historic preservation requirements consistent with Section 332(c)(7) of the Communications Act and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.