As most broadcasters are now aware, the National Programmatic Agreement (NPA) has gone into effect. The NPA implements new procedures that must be undertaken to assure that proposed tower construction complies with the National Historic Preservation Act of 1966 (NHPA), particularly with respect to the potential impact on areas under the jurisdiction of State Historic Preservation Officers (SHPOs), Indian tribes or Native Hawaiian Organizations (NHOs).
Last year, the commission established an online Tower Construction Notification System (TCNS) to facilitate compliance with those procedures. In April, it provided clarification about how that system is supposed to work in terms of assisting construction notifications to Indian tribes and NHOs.
Using TCNS, SHPOs, tribes and NHOs may enter and update the geographic areas for which they are interested in receiving notices. When you want to build a tower, you are required under the NPA to make reasonable good faith efforts to identify and make contact with any SHPO, tribe or NHO that may attach religious and cultural importance to your proposed site. Someone planning to construct a tower can, through TCNS, identify and make initial contact with organizations that may have an interest in the project. Keep in mind, however, TCNS is intended only to facilitate early notifications; sending TCNS notifications does not constitute a legally sufficient resolution under NHPA.
The system works like this: A tower proponent enters the geographic information about the proposal into TCNS. TCNS then forwards the notification to the SHPOs, tribes and NHOs that have expressed an interest in that geographic area. And, if one or more of these organizations has not specified any particular geographic area, then the FCC forwards all notifications throughout the entire United States. SHPOs will receive notifications of tower construction in their own and adjacent states. For example, an Indian tribe in Alaska will receive only notifications relating to proposals in Alaska, unless the tribe sets different preferences.
SHPOs, tribes and NHOs are entitled to respond to a TCNS notification. But, the NPA does not specify any deadline by which such responses must be made. So if you propose a site in an area in which an SHPO, tribe or NHO has specified an interest, and if the group does not respond to your notification, you have to make a reasonable effort to follow up. And if they still don't respond, you must then seek guidance from the commission.
The job is even tougher when it comes to tribes and NHOs that have not designated any geographic areas of interest through TCNS. For them, you must undertake reasonable, good faith efforts to determine whether any tribe or NHO might attach historic, religious and cultural significance to the property. If you conclude that such an organization may attach such significance, but has not responded to the TCNS notification you filed, you have to follow up and, if you still get no response, you, too, must seek guidance from the FCC.
Of course, if you determine that no tribe or NHO is likely to attach such significance to the area, you don't need to take further action unless a tribe or NHO at some later point indicates some interest or other evidence of potential interest comes to the applicant's attention.
Thus, while it is true that by entering your proposal into TCNS, you theoretically can notify all potentially interested SHPOs, tribes and NHOs, the burden is still on the applicant to check into whether the proposed site may be of particular interest to any tribes or NHOs that have not indicated any specific interest in the area of that site. And once notices have been given to all potentially interested SHPOs, tribes and NHOs, the applicant must still follow up if no response is received. If no response to the follow-up is received, the applicant is still not out of the woods — the next step is to seek guidance from the FCC.
Harry C. Martin is president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC, Arlington, VA.
Dateline
Aug. 1 is the deadline for TV, TV translator and Class A TV stations in Illinois and Wisconsin to file their 2005 renewal applications, biennial ownership reports and EEO program reports (FCC Form 396). Forms must include the station's EEO public file reports for the 12-month periods ending in July 2004 and July 2005.
Aug. 1 also is the date when TV stations in Iowa and Missouri must begin their prefiling renewal announcements.
Send questions and comments to:harry_martin@primediabusiness.com
