The FCC has adopted a tower construction notification system, which is intended to help guide broadcasters through the ofttimes difficult process of determining whether the site they have selected for a new tower is, in fact, taboo because of any number of historic, cultural or Indian tribal considerations.
The voluntary system is designed to facilitate review of proposed tower sites and to alert new tower proponents if their proposed construction might be affected by the site's proximity to site(s) of historic, cultural or Indian tribal religious significance. The new system is not intended to supplant the government-to-government consultation process with federally recognized tribes. The National Historic Preservation Act (NHPA) mandates that process. Nor does the new process alter the FCC's antenna structure registration process. Rather, the new process provides a tool to assist tower companies (and others, including broadcasters who find themselves involved in the tower construction process) in ensuring that their proposed construction complies with all applicable federal, state, local and tribal rules. The FCC reviews proposed tower construction under the NHPA.
The system allows anyone proposing to build a tower to submit an electronic notification to the commission about the proposed construction. The commission will then provide this information to the relevant entities on a weekly (by e-mail) or monthly (by postal mail) basis. Those entities may then submit responses back to the commission, and the commission will forward those responses back to the notifier. Information regarding any proposed tower construction site nationwide will be sent to every tribe unless a tribe asks the FCC to limit notifications to a specific geographic area. Each state historic preservation office will receive notifications relating to proposed tower construction at locations in their own state and any adjacent states.
Despite the fact that the FCC is adding — rather than cutting — a middleman, the new system (in theory) should help abbreviate the often-lengthy historic preservation review process. The system streamlines the process, providing a kind of “one-stop shopping” for tower proponents: they provide the FCC with the notification, and the commission then handles the dissemination of that information to organizations that might be affected by the proposed construction. This replaces the alternative hit-and-miss system, in which would-be tower builders attempt to identify and contact all parties that might hold a vested interest in the historic, religious or cultural value of its proposed site. The FCC's new clearinghouse method should reduce the time committed to review, and broadcasters may therefore reduce the time, effort and money invested in a tower construction project.
Note that this new system is voluntary. You are not required to submit notification of a proposed tower if you don't want to. But whether or not you do provide a notification, you will in any event be required to comply with the NHPA, even if you are not aware of any sites near the proposed tower that might be of any historic, cultural or tribal religious significance. So while the new system is not a free pass around the statutory obligations relating to protection of certain culturally significant sites, it may help unsuspecting tower proponents avoid the unpleasant surprise of learning at the last minute that their construction cannot proceed as planned because of NHPA-related concerns.
If you wish to use the notification system, go to www.wireless.fcc.gov/outreach/notification/index.html and click on the “notify” button. You will then be prompted to provide an FCC registration number (FRN) and associated password, after which you will be required to provide information about yourself and your proposed construction.
Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.
Send questions and comments to:harry_martin@primediabusiness.com
Dateline
Television stations in Maryland, Virginia Washington, DC, and West Virginia must file their renewal applications with the FCC on June 1, 2004. Renewals must include an ownership report (Form 323 or 323-E), and an EEO program report (FCC Form 396).
Also on June 1, stations in North and South Carolina must begin their pre-filing renewal announcements.
