[Federal Register Volume 66, Number 63 (Monday, April 2, 2001)]
[Notices]
[Pages 17554-17557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7875]


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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

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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