Escaping the Twilight Zone – FCC Aims to Expedite Wireless Deployment by Exempting Twilight Towers from Historic Preservation Review
Consistent with Chairman Pai’s focus on accelerating infrastructure deployment to enable next generation wireless services, the Federal Communications Commission (“FCC” or “Commission”) unanimously opened at its monthly meeting on December 14, 2017 a proceeding to exempt wireless communications equipment from historic preservation requirements under certain conditions. The FCC’s action is directed at enabling operations on so-called “Twilight Towers” - wireless towers constructed between 2001 and 2005 that are claimed to have languished due to regulatory uncertainty. The Commission describes this proposal as an action that would open up potentially thousands of existing towers for collocations without the need for either the collocation or the underlying tower to complete an individual historic preservation review.
Section 106 of the National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including collocation of wireless communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements.
For towers constructed between 2001 and 2005, there was considerable regulatory uncertainty about the specific procedures tower owners were supposed to follow for purposes of compliance with historic preservation requirements. To resolve this issue, the FCC proposes to exempt Twilight Towers from historic preservation review requirements and refrain from taking enforcement action against entities that deployed Twilight Towers in good faith despite lack of clear regulatory guidance.
The proposal would exempt mounting new antennas on Twilight Towers from routine historic review requirements subject to the following limitations:
- Tower Size Increase Restrictions: The newly mounted antenna cannot increase the tower’s height by more than either ten percent or the height of another antenna array within twenty feet, whichever is greater.
- New Equipment Installation Restrictions: The newly mounted antenna cannot require installing more than four new equipment cabinets or more than one new equipment shelter.
- Protruding Components Restrictions: The newly mounted antenna cannot add components that protrude from the tower by more than either twenty feet or the width of the tower structure at the level of the protruding element, whichever is greater.
- Excavation Restrictions: The newly mounted antenna cannot require excavation outside the tower site, defined as the current boundaries of the property surrounding the tower and any access or utility easements currently related to the site.
- Prior Adverse Determination Exception: New antennas cannot be mounted to towers that the FCC has determined have an adverse effect on one or more historic properties if that effect has not been avoided or mitigated.
- Pending Review Exception: New antennas cannot be mounted to towers that are the subject of a pending environmental review or related proceeding before the FCC involving compliance with Section 106 of the NHPA.
- Prior Complaints Exception: New antennas cannot be mounted to a tower if the collocation licensee or tower owner has been notified that the FCC received a written complaint 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.”
Comments on the Commission’s proposal will be due 30 days (and Reply Comments 45 days) after publication in the Federal Register.