[Federal Register Volume 67, Number 24 (Tuesday, February 5, 2002)]
[Notices]
[Pages 5282-5287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2705]


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FEDERAL COMMUNICATIONS COMMISSION

[DA 02-28]


Fact Sheet Regarding the Implementation of the Nationwide 
Programmatic Agreement With Respect to Collocating Wireless and 
Broadcast Facilities on Existing Towers and Structures

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: In this public notice and the attached Fact Sheet (Appendix 
A), we present guidance for the implementation of the March 16, 2001 
Nationwide Programmatic Agreement (Programmatic Agreement) which 
applies to wireless and broadcast facilities and that streamlines 
procedures for review of collocations of antennas under the National 
Historic Preservation Act (NHPA).

FOR FURTHER INFORMATION CONTACT: Ivy Harris, Wireless 
Telecommunications Bureau, at (202) 418-0621.

SUPPLEMENTARY INFORMATION: The Wireless Telecommunications Bureau 
previously announced the execution of this Programmatic Agreement by 
Public Notice released March 16, 2001. The Nationwide Programmatic 
Agreement was executed by the Federal Communications Commission, the 
National Conference of State Historic Preservation Officers, and the 
Advisory Council on Historic Preservation. See Wireless 
Telecommunications Bureau Announces Execution of Programmatic Agreement 
with Respect to Co-Locating Wireless Antennas on Existing Structure, 
Public Notice, DA 01-691 (rel. Mar. 16, 2001), 66 FR 17554 (Apr. 2, 
2001).
    This Public Notice (including the Fact Sheet) 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. The Appendix A appears 
at the end of this document.


[[Page 5283]]


Federal Communications Commission.
William F. Caton,
Acting Secretary.

Appendix A--January 10, 2002

Table of Contents

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                                                                    Page
                             Section                                no.
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1. Background, Purpose and Scope of the Agreement................      2
2. General Operation of the Agreement............................      3
3. Definitions...................................................      4
4. Collocation on Towers Constructed on or before March 16, 2001.      5
5. Collocation on Towers Constructed after March 16, 2001........      6
6. Collocation on Buildings and Non-Tower Structures outside           7
 Historic Districts..............................................
7. Tribal Lands and Tribal Consultation..........................      8
8. Federal Property..............................................     10
9. Need for Applicants to File Environmental Assessments.........     10
10. Filing Instructions/ULS......................................     11
11. Disposition of Pending Matters...............................     11
12. Complaints...................................................     12
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    The Federal Communications Commission (FCC or Commission), the 
Advisory Council on Historic Preservation (ACHP or Council), and the 
National Conference of State Historic Preservation Officers (NCSHPO) 
entered into a Nationwide Programmatic Agreement for the Collocation 
of Wireless Antennas (the ``Agreement'') on March 16, 2001.\1\ The 
Agreement applies to wireless and broadcast facilities and is 
intended to streamline procedures for review of collocations of 
wireless and broadcast antennas and associated equipment (herein 
``antennas'') on existing towers and other structures under the 
National Historic Preservation Act (NHPA).\2\
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    \1\ Public Notice, Wireless Telecommunications Bureau Announces 
Execution of Programmatic Agreement with Respect to Collocating 
Wireless Antennas on Existing Structures, DA 01-691, rel. March 16, 
2001.
    \2\ 16 U.S.C. 470 et seq.
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    This Fact Sheet provides guidance regarding the implementation 
of the Agreement for Commission broadcast and wireless service 
licensees, applicants, tower companies, and tower owners 
(collectively, ``applicants''). This Fact Sheet also provides 
guidance to State Historic Preservation Officers (SHPOs), Tribal 
Historic Preservation Officers (THPOs), and other interested 
parties. The guidance set forth in this Fact Sheet does not amend or 
act as a substitute for the text of the Agreement or the 
Commission's rules. The guidance also does not amend or act as a 
substitute for the ACHP's rules (except to the extent the Agreement 
itself substitutes for the ACHP's rules). The complete text of the 
Agreement is available on the Wireless Telecommunications Bureau 
(``WTB'') Web site at http://wireless.fcc.gov/siting/, or by 
contacting the WTB by e-mail at [email protected] or by 
phoning Ivy Harris at (202) 418-0621 for wireless-related inquiries; 
or on the Mass Media Bureau (``MMB'') Web site at http://www.fcc.gov/mmb/mmb_siting.html, or by contacting the MMB by e-mail 
at [email protected], or by phoning Marva Dyson at (202) 418-2870 
for broadcast-related inquiries.

(1) Background, Purpose, and Scope of the Agreement

    Under section 106 of the NHPA (16 U.S.C. 470f), federal agencies 
are required to take into account the effects of federal 
undertakings on historic properties. The Commission's environmental 
rules require licensees and applicants to evaluate whether proposed 
facilities may affect historic properties that are listed or 
eligible for listing in the National Register of Historic Places 
(``National Register''). See 47 CFR 1.1307(a)(4). Consistent with 
section 106, this evaluation process includes consultation with the 
relevant State Historic Preservation Officer (SHPO) and/or Tribal 
Historic Preservation Officer (THPO), as well as compliance with 
other procedures set out in the ACHP rules, 36 CFR part 800, subpart 
B. The Commission becomes directly involved in the consultation 
process when an applicant determines that a proposed facility will 
have an adverse effect or when there is a dispute between the 
applicant and the SHPO/THPO regarding whether a proposed facility 
will have an adverse effect.\3\ Where a facility may have an adverse 
effect on a historic property, the Commission's rules require 
submission of an Environmental Assessment (EA) prior to 
construction.\4\
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    \3\ See also Memorandum from John M. Fowler, Executive Director, 
Advisory Council on Historic Preservation, to Federal Communications 
Commission, State Historic Preservation Officers, and Tribal 
Historic Preservation Officers, dated September 21, 2000 (confirming 
authority to delegate) (ACHP Delegation Memo).
    \4\ 47 CFR 1.1307(a)(4). No EA is required for a finding of ``no 
effect'' or ``no adverse effect.'' See Section 9, infra.
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    The purpose of the Agreement is to streamline the procedures 
associated with section 106 review and the Commission's rules in 
order to facilitate access to advanced telecommunications services 
by all Americans in a manner that is consistent with the NHPA's goal 
of preserving the nation's historic properties and with the pro-
competitive and deregulatory goals of the Communications Act of 
1934, as amended. According to one industry source, the number of 
wireless cell sites in the United States increased from a total of 
913 in 1985 to 104,288 in 2000.\5\ This explosive growth in the 
number of wireless communications facilities has imposed strains on 
all parties to the historic preservation review process and led to 
delays in deployment. Additionally, Congress has mandated that all 
television stations convert to digital transmission by the end of 
2006. While television broadcasters will likely attempt to collocate 
their digital facilities in the interest of economy and expedition, 
the transition may necessitate the construction of some new towers 
to support the digital antennas. However, not all facilities 
construction is alike in its potential to affect adversely historic 
properties. In particular, the addition of an antenna to a pre-
existing tower or other structure that is not itself a historic 
property (i.e., collocation) ordinarily should not have an adverse 
effect on historic properties. The Agreement therefore exempts 
collocated antennas from the review process under the NHPA unless 
they fall within a set of exceptions designed to encompass potential 
problematic situations. The Agreement is intended to encourage the 
collocation of future antennas on existing structures, create an 
incentive for parties to comply with section 106 on a going-forward 
basis, and, where reasonably possible from a network and coverage 
perspective, to encourage applicants to locate their facilities away 
from historic properties.
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    \5\ Cellular Telecommunications Industry Association Semi-Annual 
Wireless Survey, Table (``Cell Sites''), December 31, 2000.
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    The Agreement governs only the review of collocations under the 
NHPA for effects on historic properties listed, or eligible for 
listing, in the National Register. New tower construction and the 
replacement of existing towers are not exempted from review under 
the Agreement. The Agreement does not affect the review of 
collocations to determine compliance with other aspects of the FCC's 
environmental rules or other federal, state, or local laws.

(2) General Operation of the Agreement

    Stipulations III, IV, and V form the core of the Agreement's 
provisions for collocations. The general effect of these provisions 
is to exempt all collocations of antennas from the section 106 
review process, unless an exception stated in Stipulation III, IV, 
or V applies. Thus, unless an exception is applicable, collocations 
shall not be submitted to the SHPO for review. A more detailed 
discussion of these three stipulations is included in the fourth, 
fifth, and sixth sections of this Fact Sheet.
    We note that the Agreement governs only section 106 review of 
the collocation itself. Nothing in the Agreement affects the rights, 
if any, of the FCC, ACHP, SHPOs, THPOs, tribal governments, or 
members of the public to challenge any underlying tower that has an 
adverse effect on a historic property, independent of the 
collocation process.
    A. Pre-Existing Towers. Stipulation III governs collocation on 
all towers constructed on or before the date of the Agreement, March 
16, 2001. Stipulation III allows for collocation on those towers 
without the collocation having to undergo consultation and review 
under section 106 of the NHPA, whether or not the underlying tower 
has previously undergone section 106 review, unless the collocation 
is subject to one of the exceptions listed in Stipulation III (see 
section 4, below, ``Collocation on Towers Constructed on or before 
March 16, 2001'').
    B. Newly Constructed Towers. Stipulation IV covers collocations 
on towers built after March 16, 2001. Stipulation IV allows for 
collocation on those towers without the collocation having to 
undergo section 106 consultation and review, unless the collocation 
is subject to one of the exceptions listed in Stipulation IV (see 
section 5, below, ``Collocation on Towers Constructed after March 
16, 2001''). For towers built after March 16, 2001, one of these 
exceptions

[[Page 5284]]

occurs when the underlying tower has not completed section 106 
review. If the underlying tower has not gone through section 106 
review, an applicant cannot collocate on that tower without a 
written concurrence with a finding of ``no effect'' or ``no adverse 
effect'' on historic properties from the relevant SHPO, the ACHP, or 
the FCC, or an agreement on mitigation of adverse effects and 
subsequent approval under the FCC's rules.
    C. Buildings and Non-Tower Structures outside Historic 
Districts. Stipulation V governs collocations of antennas on 
buildings and non-tower structures outside historic districts. 
Stipulation V allows for collocations on buildings and non-tower 
structures without the collocation having to undergo section 106 
review, unless the collocation is subject to one of the exceptions 
listed in Stipulation V (see section 6, below, ``Collocation on 
Buildings and Non-Tower Structures outside Historic Districts'').

(3) Definitions

    Collocation: ``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. Under the Agreement, the term 
``collocation'' includes excavation and the placement of equipment 
necessarily or reasonably associated with the mounting or 
installation of an antenna.
    Tower: ``Tower'' is any structure built for the sole or primary 
purpose of supporting antennas and their associated facilities used 
to provide FCC-licensed services.\6\ A water tower, utility tower, 
or other structure built primarily for a purpose other than 
supporting FCC-licensed services is not a ``tower'' for purposes of 
the Agreement, but is a non-tower structure.
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    \6\ This may include a tower on which no antennas have been 
located prior to the collocation at issue, if the principal purpose 
for constructing the tower was to support FCC-licensed antennas.
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    Substantial increase in the size of the tower: Although 
Stipulations III and IV permit collocation on towers without the 
collocation having to undergo section 106 consultation and review, 
this authorization is limited by, among other things, the size and 
scope of the collocation. Thus, if the collocation will result in a 
``substantial increase in the size of the tower,'' the collocation 
must go through section 106 consultation and review. A ``substantial 
increase in the size of the tower'' occurs under one or more of the 
following circumstances:
    (1) The height of the tower will be increased by more than the 
greater of: (a) 10% of the height of the tower; or (b) the height 
extension needed to accommodate one additional antenna array with a 
separation of 20 feet from the nearest existing antenna. Thus, a 
150-foot tower may be increased in height by up to 15 feet without 
constituting a substantial increase in size. If there is already an 
antenna at the top of the tower, the tower height may be increased 
by up to 20 feet plus the height of a new antenna to be located at 
the new top of the tower.
    (2) More than four new equipment cabinets or more than one new 
equipment shelter will be added.
    (3) The width of the tower will be increased by more than the 
greater of: (a) 20 feet in any direction from the edge of the tower; 
or (b) the width of the tower structure at the level of the 
appurtenance. For example, if the width of the tower structure at 
the level of the appurtenance is 40 feet, the appurtenance can 
protrude up to 40 feet from the edge of the tower at that point 
without constituting a substantial increase in the size of the 
tower.
    (4) Excavation will occur outside the current tower site, 
defined as the area within the boundaries of the leased or owned 
property surrounding the tower at the time of the proposed 
collocation, and including any access or utility easements related 
to the site.
    A collocation may exceed the size limits in the first category 
without requiring section 106 review if the additional height is 
necessary to avoid radio interference with or from existing 
antennas. A collocation may exceed the size limits in the third 
category without requiring section 106 review if the additional 
width is necessary to shelter the antenna from inclement weather or 
to connect the antenna to the tower via cable. If a complaint is 
filed regarding a specific collocation that exceeds the size limits 
set out in the Agreement, the Commission may require the applicant 
to explain why one of these exceptions is applicable to the 
collocation.

(4) Collocation on Towers Constructed on or Before March 16, 2001 
(Stipulation III)

    For towers constructed on or before March 16, 2001, the 
Agreement generally allows collocation without consultation or 
review under section 106 and subpart B of 36 CFR part 800. There are 
four situations involving the mounting of antennas on such towers, 
however, that still require review:
    (1) the mounting of the antenna will result in a substantial 
increase in the size of the tower (see section 3, Definitions, 
above); or,
    (2) prior to the collocation, 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 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 supported by substantial evidence that the collocation has 
an adverse effect on one or more historic properties.
    For purposes of the third exception, a ``review or related 
proceeding'' commences with respect to wireless facilities or tower 
registration when the FCC's WTB assigns it a file number and 
contacts the tower owner, tower manager, or the owner's authorized 
agent (herein collectively the ``tower owner'') in response to a 
SHPO adverse effect letter, a complaint from a member of the public, 
or otherwise. Similarly, a ``review or related proceeding'' 
commences with respect to broadcast facilities when (1) due to the 
proximity of historic properties, an applicant cannot certify 
compliance with the FCC's environmental rules and submits an 
Environmental Assessment with its application to the MMB; or (2) the 
FCC receives a SHPO adverse effect letter or a complaint from a 
member of the public. A review is ``pending'' from the time it 
commences until the FCC dismisses, closes, or otherwise resolves the 
matter. Simple receipt by the Commission of a letter from a SHPO 
alleging that its ability to consult about a tower or collocation 
prior to construction may have been foreclosed does not in itself 
establish that a review is pending.
    To determine whether a review is pending on a particular tower, 
an interested party should contact the tower owner. In addition, the 
FCC will soon make available a database listing pending section 106 
reviews and related proceedings for both wireless and broadcast 
services. Potential collocators are encouraged to consult the FCC 
database in addition to contacting the tower owner; however, parties 
should not rely solely on the database. Any party that follows these 
steps in good faith to determine the pendency of a proceeding will 
be considered to have complied with the intent of the Agreement.
    A tower is considered to be constructed on or before March 16, 
2001 if the structure reached its initial intended height above 
ground, or was available for the mounting of collocations, by March 
16, 2001. For towers that must be registered with the FCC under part 
17 of the Commission's rules,\7\ the completion date will be the 
date reported to the Commission on FCC Form 854 as the date of 
completion of construction.\8\
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    \7\ See 47 CFR 17.1 et seq. These rules require that antenna 
structures located close to airports or that are greater than 200 
feet in height comply with painting and lighting specifications 
designed to ensure aircraft navigation safety. The FCC requires 
certain antenna structure owners to register structures with the 
Commission.
    \8\ See 47 CFR 17.57.
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(5) Collocation on Towers Constructed After March 16, 2001 (Stipulation 
IV)

    The Agreement generally allows collocation on towers constructed 
after March 16, 2001, without consultation or review of the 
collocation under section 106 and subpart B of 36 CFR part 800. 
There are four situations involving the mounting of antennas on such 
towers, however, that still require review:
    (1) The section 106 review process for the tower and any 
associated environmental reviews have not been completed; or,
    (2) The collocation will result in a substantial increase in the 
size of the tower (see section 3, Definitions, above); or,
    (3) Prior to the collocation, the tower has been determined by 
the FCC to have an effect

[[Page 5285]]

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 supported by substantial evidence that the collocation has 
an adverse effect on one or more historic properties.
    We emphasize that pursuant to Subsection (1) of Stipulation IV, 
above, a tower built after March 16, 2001, may benefit from the 
collocation provisions of the Agreement only if that tower has 
completed the section 106 review and related historic preservation 
review under the FCC's NEPA rules.\9\ Typical evidence of a 
completed section 106 review would include a SHPO's written 
concurrence with a finding of ``no effect'' or ``no adverse effect'' 
or an executed Memorandum of Agreement. Where a SHPO has an express 
policy of allowing applicants to presume concurrence if no objection 
is received within 30 days of receipt of the applicant's finding, a 
tower owner may document completion of the section 106 review by 
retaining an appropriate memorandum, together with a copy of the 
submission to the SHPO and proof of the date of submission, in the 
company file.
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    \9\ 47 CFR 1.1307(a)(4).
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    If a tower constructed after March 16, 2001 did not go through 
section 106 review prior to construction, an applicant cannot 
collocate on that tower unless the tower owner first either: (1) 
Obtains written concurrence with a finding of ``no effect'' or ``no 
adverse effect'' on historic properties from either the relevant 
SHPO, the ACHP, or the FCC, or (2) executes a Memorandum of 
Agreement on mitigation of adverse effects and thereafter submits an 
EA and completes the approval process under the FCC's rules.\10\
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    \10\ Where there has been an adverse effect finding, a 
Memorandum of Agreement (``MOA'') is typically signed by the 
applicant, the relevant SHPO (and/or the ACHP), and the FCC. See 36 
CFR 800.6(b)(1),(2). The MOA is then submitted to the Commission 
with an Environmental Assessment (``EA''), which upon approval by 
the Commission results in the issuance of a Finding of No 
Significant Impact (``FONSI''). See 47 CFR 1.1308.
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(6) Collocation on Buildings and Non-Tower Structures Outside Historic 
Districts (Stipulation V)

    For buildings and non-tower structures, the Agreement allows 
collocation without consultation or review under Section 106 in some 
circumstances. Collocation without section 106 review is more 
limited in these cases to account for the fact that the building or 
non-tower structure itself could be a historic property. There are 
four situations involving the mounting of antennas on buildings and 
non-tower structures that require review:
    (1) the building or structure is over 45 years old; \11\ or,
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    \11\ 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 (a) inside the boundary of a 
historic district, or (b) outside (but within 250 feet of) the 
boundary of a historic district and the antenna is visible from 
ground level anywhere within the historic district; or
    (3) the building or structure is either (a) a designated 
National Historic Landmark or (b) listed in or eligible for listing 
in the National Register of Historic Places; \12\ or,
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    \12\ The National Register is the Nation's official list of 
cultural resources officially deemed worthy of preservation. See the 
National Park Service's cultural resources page on the National 
Register: http://www.cr.nps.gov/nr/about.htm. Authorized under the 
NHPA, the National Register is part of a national program to 
coordinate and support public and private efforts to identify, 
evaluate, and protect our historic and archeological resources. 
Properties listed in the Register include districts, sites, 
buildings, structures, and objects that are significant in American 
history, architecture, archeology, engineering, and culture. The 
National Register is administered by the National Park Service, 
which is part of the U.S. Department of the Interior. Included among 
the nearly 73,000 listings that make up the National Register are: 
(1) All historic areas in the National Park System (http://www.nps.gov/); (2) over 2,300 National Historic Landmarks (http://www.cr.nps.gov/nhl), which have been designated by the Secretary of 
the Interior because of their importance to all Americans; and, (3) 
properties across the country that have been nominated by 
governments, organizations, and individuals because they are 
significant to the nation, to a state, or to a community. Interested 
parties may begin their research by using the following National 
Register Web site: http://www.cr.nps.gov/nr/research/. Other useful 
resources include the ACHP Web site at http://www.achp.gov; the 
various State Historic Preservation Offices, accessible through the 
ACHP Web site at http://www.achp.gov/shpo.html; the various Tribal 
Historic Preservation Offices, accessible through: http://www.achp.gov/thpo.html; and the Bureau of Indian Affairs Web site at 
http://www.doi.gov/bia/areas/agency.html.
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    (4) the collocation licensee or the owner of the building or 
structure 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 supported by substantial evidence that the 
collocation has an adverse effect on one or more historic 
properties.
    For collocations on buildings and non-tower structures after 
March 16, 2001, the ACHP or the relevant SHPO or THPO may notify the 
FCC that it has determined that the collocation of the antenna or 
its associated equipment has resulted in an adverse effect on 
historic properties listed or eligible for listing in the National 
Register. The FCC will then act accordingly.
    Subsection A.2. of Stipulation V applies where the building or 
other non-tower structure on which the antenna is to be mounted is 
located outside, but within 250 feet of the boundary of, a historic 
district, and the antenna to be collocated will be clearly visible 
when viewed from an eye level of five to six feet above the ground 
from any point within the boundary of the historic district.

(7) Tribal Lands and Tribal Consultations

    The terms of the Agreement do not apply on ``tribal lands'' as 
defined under Sec. 800.16(x) of the Council's regulations, 36 CFR 
800.16(x) (``Tribal lands means all lands within the exterior 
boundaries of any Indian reservation and all dependent Indian 
communities.'').\13\ Thus, any collocation on tribal lands must be 
reviewed and approved by the appropriate tribal authorities, which 
may include a THPO.\14\ The FCC recognizes that Indian Tribes, as 
domestic dependent nations, ``exercise inherent sovereign powers 
over their members and territory.'' \15\
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    \13\ For a discussion of the definition of ``dependent Indian 
communities,'' see Alaska v. Native Village of Venetie Tribal 
Government, 522 U.S. 520 (1998).
    \14\ For an online map of Indian lands in the United States, 
visit the Bureau of Indian Affairs' Web site, ``US Indian Lands,'' 
located at: http://www.gdsc.bia.gov/products/indland.htm.
    \15\ In the Matter of Statement of Policy on Establishing a 
Government-to-Government Relationship with Indian Tribes, Policy 
Statement, 16 FCC Rcd. 4078, 4080 (2000)(FCC Tribal Policy 
Statement).
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    Although the Agreement exempts most collocations outside tribal 
lands from section 106 review, an Indian Tribe \16\ or Native 
Hawaiian organization \17\ may initiate consultation directly with 
the FCC or with its licensees, tower companies and applicants when a 
collocation outside tribal lands may affect historic properties that 
are of religious or cultural significance to that Indian tribe or 
Native Hawaiian organization. Where a collocation is not exempt from 
section 106 review under the Agreement, the applicant must make a 
good faith effort to identify Indian tribes and Native Hawaiian 
organizations whose historic properties may be affected and involve 
those entities in the Section 106 process as provided in the ACHP 
rules.\18\
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    \16\ Section 301(4) of the NHPA defines ``Indian tribe'' or 
``tribe'' as ``an Indian tribe, band, nation, or other organized 
group or community, including a Native village, Regional Corporation 
or Village Corporation, as those terms are defined in section 3 of 
the Alaska Native Claims Settlement Act [43 U.S.C. 1602], which is 
recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.'' 16 U.S.C. 470w(4).
    \17\ Section 301(18) of the NHPA defines ``Native Hawaiian 
organization'' as ``any organization which--(A) serves and 
represents the interests of Native Hawaiians; (B) has as a primary 
and stated purpose the provision of services to Native Hawaiians; 
and (C) has demonstrated expertise in aspects of historic 
preservation that are culturally significant to Native Hawaiians. 
The term includes, but is not limited to, the Office of Hawaiian 
Affairs of the State of Hawaii and Hui Malama I Na Kupuna O Hawai'i 
Nei, an organization incorporated under the laws of the State of 
Hawaii.'' 16 U.S.C. 470w(18).
    \18\ See 36 CFR 800.2(c)(2)(ii).
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    The excavation of Indian or Native Hawaiian artifacts, burial 
mounds, or other religious sites has the potential to cause a 
significant environmental effect and thus requires the preparation 
of an EA.\19\ If an

[[Page 5286]]

existing tower site is known to contain any Indian or Native 
Hawaiian archeological, religious, or cultural property that may be 
significantly affected by excavation or other work undertaken in 
connection with a collocation otherwise categorically excluded from 
environmental processing, an EA must be submitted prior to any new 
excavation or other work within that site. Similarly, if Indian or 
Native Hawaiian remains or other artifacts are discovered during 
excavation, the party must immediately cease construction and 
prepare an EA.\20\
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    \19\ See 47 CFR 1.1307(a)(5)(an EA is required where an 
undertaking ``may affect Indian religious sites''); see also Public 
Notice, ``Wireless Telecommunications Bureau Announces that Sprint 
Spectrum L.P., D/B/A SPRINT PCS Has Voluntarily Relocated a Wireless 
Telecommunications Tower Constructed on an Indian Burial Mound,'' DA 
01-1600 (rel. July 6, 2001).
    \20\ See 47 CFR 1.1312(d) (``If, following the initiation of 
construction. * * *, [a] licensee or applicant discovers that the 
proposed facility may have a significant environmental effect, it 
shall immediately cease construction. * * *''); see also 36 CFR 
800.13 (procedures for post-review discoveries).
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    We emphasize that when licensees, tower companies, and other 
applicants consult with tribal authorities they are acting as 
delegates of the FCC, which has a government-to-government 
relationship with tribes. The FCC recognizes ``the unique legal 
relationship that exists between the federal government and Indian 
Tribal governments, as reflected in the Constitution of the United 
States, treaties, federal statutes, Executive orders, and numerous 
court decisions.'' \21\ Thus, tribal authorities may request FCC 
participation in consultation on any matter at any time. Consistent 
with the FCC's trust relationship with federally recognized Indian 
tribes, applicants in undertaking all construction activities should 
be sensitive to the religious and cultural traditions of Indian 
peoples, and should endeavor to avoid actions that would adversely 
affect the preservation of those traditions. In particular, 
applicants are reminded that any information regarding historic 
properties or sacred sites to which Indian tribes attach 
significance may be highly confidential, private, and sensitive, and 
shall be treated accordingly in conformance with tribal wishes.
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    \21\ FCC Tribal Policy Statement, 16 FCC Rcd. at 4080.
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(8) Federal Property

    The terms of the Agreement do not alter any section 106 
responsibilities that federal agencies other than the FCC may have 
with regard to the collocation of antennas. Thus, licensees and 
applicants that wish to collocate an antenna on property owned or 
managed by a federal agency must continue to follow the procedures 
set forth by that agency for ensuring compliance with section 
106.\22\
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    \22\ See 47 CFR 1.1311(e) (providing that an EA need not be 
submitted to the Commission if another federal agency has assumed 
responsibility for environmental review).
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(9) Need for Applicants To File Environmental Assessments

    Section 1.1307 of the Commission's rules sets forth nine 
categories of facilities that may significantly affect the 
environment and thus require the preparation of an EA prior to 
construction.\23\ Subsection (4) of Sec. 1.1307(a)(4) sets forth the 
category related to historic preservation: ``Facilities that may 
affect districts, sites, buildings, structures or objects, 
significant in American history, architecture, archeology, 
engineering or culture, that are listed, or eligible for listing, in 
the National Register of Historic Places [citation omitted].'' \24\
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    \23\ See 47 CFR 1.1307(a), 1.1307(b).
    \24\ See 47 CFR 1.1307(a)(4). Other categories are wilderness 
areas, wildlife preserves, endangered species, Indian religious 
sites, floodplains, surface features, high intensity lights in 
residential neighborhoods, and excessive radiofrequency exposure.
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    Section 1.1307(a)(4) is intended to implement the NHPA. 
Therefore, applicants should not file an EA with the Commission 
under Sec. 1.1307(a)(4) if a SHPO has concurred in a proposed 
finding of ``no effect'' or ``no adverse effect'' on a property 
listed or eligible for listing in the National Register. In 
addition, if a collocation is exempted by the Agreement from section 
106 review, then Sec. 1.1307(a)(4) of the Commission's rules does 
not apply to the collocation. Therefore, applicants should only file 
an EA for a collocation under Sec. 1.1307(a)(4) when the collocation 
falls within one of the Agreement's exceptions (e.g., ``substantial 
increase in size'') and the collocation will adversely affect a 
historic property. Failure to file an EA when required to do so is a 
violation of the Commission's rules and may subject the licensee, 
applicant, or tower company/owner to a forfeiture or fine assessed 
pursuant to sections 501 to 503 of the Communications Act, or other 
sanctions.\25\
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    \25\ See 47 U.S.C. 501, 502, 503; 47 CFR 1.80; and, The 
Commission's Forfeiture Policy Statement and Amendment of Sec. 1.80 
of the Rules to Incorporate the Forfeiture Guidelines, Report and 
Order, 12 FCC Rcd 17087, 62 FR 43474 (Aug. 14, 1997), recon. denied 
15 FCC Rcd 303, 65 FR 4891 (Feb. 2, 2000).
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    Note 1 to Sec. 1.1306 of the Commission's NEPA rules 
categorically excludes the mounting of antennas on an existing 
building or antenna tower from the requirement to file an EA unless: 
(1) the collocation may affect historic properties under 
Secs. 1.1307(a)(4); or (2) under Sec. 1.1307(a)(2) the collocation 
would result in human exposure to RF emissions in excess of the 
Commission's RF limits set forth in Sec. 1.1307(b).\26\ Note 1 also 
states that the use of existing buildings or towers is an 
environmentally desirable alternative to the construction of new 
facilities. Accordingly, no proposed or constructed wireless 
facility, including antennas and their supporting towers or other 
structures, that has completed processing under section 106 or the 
Commission's environmental rules shall be required to be processed 
again for a collocation, except: (1) for section 106 review, where 
the addition of a collocated antenna and its related facilities 
cause a substantial increase in the size of the tower as defined in 
the Agreement; or (2) for review under the Commission's 
environmental rules, where modification of the facility is not 
categorically excluded from the Commission's NEPA rules.
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    \26\ Note 1 to Sec. 1.1306 of the Commission's NEPA rules, 47 
CFR 1.1306, states in part that: ``[t]he provisions of 
Sec. 1.1307(a) of this part requiring the preparation of EAs do not 
encompass the mounting of antenna(s) on an existing building or 
antenna tower unless Sec. 1.1307(a)(4) of this part is applicable. 
Such antennas are subject to Sec. 1.1307(b) of this part and require 
EAs if their construction would result in human exposure to 
radiofrequency radiation in excess of the applicable health and 
safety guidelines cited in Sec. 1.1307(b) of this part.''
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(10) Filing Instructions/ULS

    The instructions for FCC Form 601 (Schedule D & Schedule I 
(Microwave only)) and FCC Form 854 will be updated to reflect the 
Agreement's impact on the requirement to file an EA. Likewise, the 
instructions and worksheets for the FCC Forms used for broadcast 
construction permits and licenses will be amended to reflect the 
provisions of the Agreement.\27\ Until those changes have been put 
in effect and approved by the United States Office of Management & 
Budget, parties that are required to file Forms 601 and 854 or any 
of the relevant broadcast forms should complete the current 
versions. Where a collocation is exempt from review under the terms 
of the Agreement, filers should answer ``No'' to the question 
whether the action may significantly affect the environment and thus 
require an EA, unless an EA is required under a provision other than 
Sec. 1.1307(a)(4). During this interim period, we encourage filers 
to assist the FCC's WTB and MMB licensing staff by indicating, in a 
brief statement, that the antenna falls within the terms of the 
March 16, 2001 Collocation Agreement. Additionally, the MMB 
anticipates releasing a Public Notice advising permittees, 
licensees, and prospective applicants of their rights and 
responsibilities under the terms of the Collocation Agreement until 
the forms and instructions can be amended. Applicants should no 
longer file Form 601 or 854 solely in order to file an EA under 
Sec. 1.1307(a)(4) for a facility that is exempted from section 106 
review under the Agreement.
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    \27\ FCC Forms 301 (Full-service Commercial Broadcast 
Construction Permit), 302-AM/-FM/-CA/-TV (Full-service Commercial 
Broadcast License), 318 (Low Power FM Construction Permit), 319 (Low 
Power FM License), 340 (Noncommercial Educational Broadcast 
Construction Permit), 346 (Low Power TV, TV Translator, or TV 
Booster Construction Permit); 345 (Low Power TV, TV Translator, or 
TV Booster License), 349 (FM Translator or FM Booster Construction 
Permit) and 350 (FM Translator or FM Booster License).
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(11) Disposition of Pending Matters

    The Commission has before it certain pending reviews of 
collocations that, if undertaken after March 16, 2001, would have 
fallen within the terms of the Agreement. Consistent with the 
principles underlying the Agreement, these collocations ordinarily 
will not have an adverse effect on properties listed or eligible for 
listing in the National Register. Accordingly, licensees, 
applicants, and tower companies/owners are invited to inform the 
Commission of pending reviews of collocations that would be covered 
by the Agreement, where none of the exceptions in Stipulation III or 
V applies. If Commission staff agrees that the exceptions in 
Stipulation III or V do not apply, the licensee, applicant,

[[Page 5287]]

or tower company/owner will be notified that further processing 
under the NHPA and Sec. 1.1307(a)(4) is not required.

(12) Complaints

    The Agreement notes that persons may file a complaint with the 
FCC stating that a particular collocation ``has an adverse effect on 
one or more historic properties.'' The Agreement states that any 
such complaint must be: (1) In writing; and (2) supported by 
substantial evidence describing how the effect from the particular 
collocation is adverse to the attributes that qualify any affected 
historic property for eligibility or potential eligibility for the 
National Register. The Commission will promptly review all 
complaints so labeled, and will promptly open a case and notify the 
collocating licensee or tower owner if it determines that the 
complaint has presented substantial evidence that a proposed 
collocation at a specifically identified site will have an adverse 
effect on a specifically identified historic property.
    The person(s) filing the complaint should provide contact 
information including name, address, phone number, and an email 
address (optional but helpful to the staff). All complaints 
regarding tower registration or wireless services should be mailed 
to Federal Communications Commission, Wireless Telecommunications 
Bureau, Commercial Wireless Division, 445 12th Street, SW, 
Washington, DC 20554. The complaints should be marked: ``ATTENTION: 
NHPA COLLOCATION COMPLAINT.'' All complaints regarding broadcast 
facilities should be mailed to Federal Communications Commission, 
Mass Media Bureau, Chief, Audio Services Division (for radio 
antennas)/ Chief, Video Services Division (for television antennas), 
445 12th Street, SW, Washington, DC 20554. These complaints also 
should be marked: ``ATTENTION: NHPA COLLOCATION COMPLAINT.'' If a 
person is filing a complaint electronically, please e-mail the 
complaint to [email protected] or [email protected], as 
appropriate.
    Copies of the Programmatic Agreement and this Fact Sheet are 
available for inspection and duplication during regular business 
hours in the Reference Information Center, 445 Twelfth Street, SW, 
Courtyard Level, Washington, DC 20554. Copies may also be obtained 
from Qualex International, 445 Twelfth Street, SW, Room CY-B402, 
Washington, DC 20554; phone number: (202) 863-2893. Copies are also 
posted on the Commission's Web site at http://wireless.fcc.gov/siting and http://www.fcc.gov/mmb/mmb_siting.html. For further 
information, contact Ivy Harris at (202) 418-0621 for inquiries 
regarding wireless services, or Marva Dyson at (202) 418-2870 for 
inquiries regarding broadcast services. Send e-mail questions 
concerning implementation of the Agreement to: 
[email protected] or [email protected], as appropriate.

[FR Doc. 02-2705 Filed 2-4-02; 8:45 am]
BILLING CODE 6712-01-P