Goto Section: 1.30004 | 1.40001 | Table of Contents

FCC 1.40001
Revised as of October 2, 2015
Goto Year:2014 | 2016
§ 1.40001   Wireless Facility Modifications.

   (a)  Purpose.  These  rules implement section 6409 of the Spectrum Act
   (codified at 47 U.S.C. 1455), which requires a State or local government to
   approve any eligible facilities request for a modification of an existing
   tower  or base station that does not substantially change the physical
   dimensions of such tower or base station.

   (b) Definitions. Terms used in this section have the following meanings.

   (1) Base station. A structure or equipment at a fixed location that enables
   Commission-licensed or authorized wireless communications between user
   equipment and a communications network. The term does not encompass a tower
   as defined in this subpart or any equipment associated with a tower.

   (i) The term includes, but is not limited to, equipment associated with
   wireless communications services such as private, broadcast, and public
   safety services, as well as unlicensed wireless services and fixed wireless
   services such as microwave backhaul.

   (ii) The term includes, but is not limited to, radio transceivers, antennas,
   coaxial  or  fiber-optic cable, regular and backup power supplies, and
   comparable equipment, regardless of technological configuration (including
   Distributed Antenna Systems and small-cell networks).

   (iii) The term includes any structure other than a tower that, at the time
   the relevant application is filed with the State or local government under
   this section, supports or houses equipment described in paragraphs (b)(1)(i)
   through (ii) of this section that has been reviewed and approved under the
   applicable  zoning  or siting process, or under another State or local
   regulatory review process, even if the structure was not built for the sole
   or primary purpose of providing such support.

   (iv) The term does not include any structure that, at the time the relevant
   application is filed with the State or local government under this section,
   does not support or house equipment described in paragraphs (b)(1)(i)-(ii)
   of this section.

   (2) Collocation. The mounting or installation of transmission equipment on
   an  eligible  support structure for the purpose of transmitting and/or
   receiving radio frequency signals for communications purposes.

   (3) Eligible facilities request. Any request for modification of an existing
   tower  or base station that does not substantially change the physical
   dimensions of such tower or base station, involving:

   (i) Collocation of new transmission equipment;

   (ii) Removal of transmission equipment; or

   (iii) Replacement of transmission equipment.

   (4) Eligible support structure. Any tower or base station as defined in this
   section, provided that it is existing at the time the relevant application
   is filed with the State or local government under this section.

   (5) Existing. A constructed tower or base station is existing for purposes
   of this section if it has been reviewed and approved under the applicable
   zoning or siting process, or under another State or local regulatory review
   process, provided that a tower that has not been reviewed and approved
   because it was not in a zoned area when it was built, but was lawfully
   constructed, is existing for purposes of this definition.

   (6) Site. For towers other than towers in the public rights-of-way, the
   current boundaries of the leased or owned property surrounding the tower and
   any access or utility easements currently related to the site, and, for
   other  eligible support structures, further restricted to that area in
   proximity to the structure and to other transmission equipment already
   deployed on the ground.

   (7) Substantial change. A modification substantially changes the physical
   dimensions of an eligible support structure if it meets any of the following
   criteria:

   (i) For towers other than towers in the public rights-of-way, it increases
   the 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; for other eligible support
   structures, it increases the height of the structure by more than 10% or
   more than ten feet, whichever is greater;

   (A) Changes in height should be measured from the original support structure
   in cases where deployments are or will be separated horizontally, such as on
   buildings' rooftops; in other circumstances, changes in height should be
   measured from the dimensions of the tower or base station, inclusive of
   originally approved appurtenances and any modifications that were approved
   prior to the passage of the Spectrum Act.

   (ii) For towers other than towers in the public rights-of-way, it involves
   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; for other
   eligible support structures, it involves adding an appurtenance to the body
   of the structure that would protrude from the edge of the structure by more
   than six feet;

   (iii) For any eligible support structure, it involves installation of more
   than  the standard number of new equipment cabinets for the technology
   involved, but not to exceed four cabinets; or, for towers in the public
   rights-of-way  and  base stations, it involves installation of any new
   equipment  cabinets  on the ground if there are no pre-existing ground
   cabinets associated with the structure, or else involves installation of
   ground cabinets that are more than 10% larger in height or overall volume
   than any other ground cabinets associated with the structure;

   (iv) It entails any excavation or deployment outside the current site;

   (v)  It  would defeat the concealment elements of the eligible support
   structure; or

   (vi) It does not comply with conditions associated with the siting approval
   of the construction or modification of the eligible support structure or
   base station equipment, provided however that this limitation does not apply
   to any modification that is non-compliant only in a manner that would not
   exceed the thresholds identified in § 1.40001(b)(7)(i) through (iv).

   (8) Transmission equipment. Equipment that facilitates transmission for any
   Commission-licensed or authorized wireless communication service, including,
   but not limited to, radio transceivers, antennas, coaxial or fiber-optic
   cable, and regular and backup power supply. The term includes equipment
   associated with wireless communications services including, but not limited
   to, private, broadcast, and public safety services, as well as unlicensed
   wireless services and fixed wireless services such as microwave backhaul.

   (9) Tower. Any structure built for the sole or primary purpose of supporting
   any  Commission-licensed  or  authorized antennas and their associated
   facilities,  including  structures  that  are constructed for wireless
   communications services including, but not limited to, private, broadcast,
   and public safety services, as well as unlicensed wireless services and
   fixed wireless services such as microwave backhaul, and the associated site.

   (c) Review of applications. A State or local government may not deny and
   shall  approve  any eligible facilities request for modification of an
   eligible support structure that does not substantially change the physical
   dimensions of such structure.

   (1) Documentation requirement for review. When an applicant asserts in
   writing that a request for modification is covered by this section, a State
   or local government may require the applicant to provide documentation or
   information only to the extent reasonably related to determining whether the
   request meets the requirements of this section. A State or local government
   may not require an applicant to submit any other documentation, including
   but not limited to documentation intended to illustrate the need for such
   wireless facilities or to justify the business decision to modify such
   wireless facilities.

   (2) Timeframe for review. Within 60 days of the date on which an applicant
   submits a request seeking approval under this section, the State or local
   government shall approve the application unless it determines that the
   application is not covered by this section.

   (3) Tolling of the timeframe for review. The 60-day period begins to run
   when the application is filed, and may be tolled only by mutual agreement or
   in cases where the reviewing State or local government determines that the
   application is incomplete. The timeframe for review is not tolled by a
   moratorium on the review of applications.

   (i) To toll the timeframe for incompleteness, the reviewing State or local
   government must provide written notice to the applicant within 30 days of
   receipt of the application, clearly and specifically delineating all missing
   documents  or  information.  Such delineated information is limited to
   documents or information meeting the standard under paragraph (c)(1) of this
   section.

   (ii) The timeframe for review begins running again when the applicant makes
   a supplemental submission in response to the State or local government's
   notice of incompleteness.

   (iii) Following a supplemental submission, the State or local government
   will have 10 days to notify the applicant that the supplemental submission
   did  not  provide  the  information  identified in the original notice
   delineating missing information. The timeframe is tolled in the case of
   second or subsequent notices pursuant to the procedures identified in this
   paragraph (c)(3). Second or subsequent notices of incompleteness may not
   specify missing documents or information that were not delineated in the
   original notice of incompleteness.

   (4) Failure to act. In the event the reviewing State or local government
   fails to approve or deny a request seeking approval under this section
   within the timeframe for review (accounting for any tolling), the request
   shall be deemed granted. The deemed grant does not become effective until
   the applicant notifies the applicable reviewing authority in writing after
   the  review  period  has expired (accounting for any tolling) that the
   application has been deemed granted.

   (5) Remedies. Applicants and reviewing authorities may bring claims related
   to Section 6409(a) to any court of competent jurisdiction.

   [ 80 FR 1269 , Jan. 8, 2015]

   return arrow Back to Top

Appendix A to Part 1—A Plan of Cooperative Procedure in Matters and Cases Under
the Provisions of Section 410 of the Communications Act of 1934

   (Approved by the Federal Communications Commission October 25, 1938, and
   approved by the National Association of Railroad and Utilities Commissioners
   on November 17, 1938.)

preliminary statement concerning the purpose and effect of the plan

   Section 410 of the Communications Act of 1934 authorizes cooperation between
   the  Federal Communications Commission, hereinafter called the Federal
   Commission,  and  the  State commissions of the several States, in the
   administration of said Act. Subsection (a) authorizes the reference of any
   matter arising in the administration of said Act to a board to be composed
   of a member or members from each of the States in which the wire, or radio
   communication affected by or involved in the proceeding takes place, or is
   proposed. Subsection (b) authorizes conferences by the Federal Commission
   with State commissions regarding the relationship between rate structures,
   accounts, charges, practices, classifications, and regulations of carriers
   subject to the jurisdiction of such State commissions and of said Federal
   Commission and joint hearings with State commissions in connection with any
   matter with respect to which the Federal Commission is authorized to act.

   Obviously, it is impossible to determine in advance what matters should be
   the subject of a conference, what matters should be referred to a board, and
   what matters should be heard at a joint hearing of State commissions and the
   Federal Commission. It is understood, therefore, that the Federal Commission
   or any State commission will freely suggest cooperation with respect to any
   proceedings or matter affecting any carrier subject to the jurisdiction of
   said Federal Commission and of a State commission, and concerning which it
   is believed that cooperation will be in the public interest.

   To enable this to be done, whenever a proceeding shall be instituted before
   any commission, Federal or State, in which another commission is believed to
   be  interested,  notice  should be promptly given each such interested
   commission  by  the  commission  before  which the proceeding has been
   instituted. Inasmuch, however, as failure to give notice as contemplated by
   the  provisions  of  this  plan  will  sometimes  occur purely through
   inadvertence, any such failure should not operate to deter any commission
   from suggesting that any such proceeding be made the subject matter of
   cooperative action, if cooperation therein is deemed desirable.

   It is understood that each commission whether or not represented in the
   National Association of Railroad and Utilities Commissioners, must determine
   its own course of action with respect to any proceeding in the light of the
   law under which, at any given time, it is called upon to act, and must be
   guided by its own views of public policy; and that no action taken by such
   Association  can  in any respect prejudice such freedom of action. The
   approval by the Association of this plan of cooperative procedure, which was
   jointly prepared by the Association's standing Committee on Cooperation
   between  Federal and State commissions and said Federal Commission, is
   accordingly recommendatory only; but such plan is designed to be, and it is
   believed that it will be, a helpful step in the promotion of cooperative
   relations between the State commissions and said Federal Commission.

notice of institution of proceeding

   Whenever  there  shall be instituted before the Federal Commission any
   proceeding involving the rates of any telephone or telegraph carrier, the
   State  commissions  of  the  States  affected thereby will be notified
   immediately thereof by the Federal Commission, and each notice given a State
   commission will advise such commission that, if it deems the proceeding one
   which should be considered under the cooperative provisions of the Act, it
   should either directly or through the National Association of Railroad and
   Utilities Commissioners, notify the Federal Commission as to the nature of
   its interest in said matter and request a conference, the creation of a
   joint board, or a joint hearing as may be desired, indicating its preference
   and  the  reasons  therefor.  Upon receipt of such request the Federal
   Commission will consider the same and may confer with the commission making
   the request and with other interested commission, or with representatives of
   the National Association of Railroad and Utilities Commissioners, in such
   manner  as may be most suitable; and if cooperation shall appear to be
   practicable and desirable, shall so advise each interested State commission,
   directly, when such cooperation will be by joint conference or by reference
   to a joint board appointed under said sec. 410 (a), and, as hereinafter
   provided, when such cooperation will be by a joint hearing under said sec.
   410(b).

   Each State commission should in like manner notify the Federal Commission of
   any proceeding instituted before it involving the toll telephone rates or
   the  telegraph rates of any carrier subject to the jurisdiction of the
   Federal Commission.

procedure governing joint conferences

   The Federal Commission, in accordance with the indicated procedure, will
   confer  with any State commission regarding any matter relating to the
   regulation  of  public utilities subject to the jurisdiction of either
   commission. The commission desiring a conference upon any such matter should
   notify the other without delay, and thereupon the Federal Commission will
   promptly arrange for a conference in which all interested State commissions
   will be invited to be present.

procedure governing matters referred to a board

   Whenever the Federal Commission, either upon its own motion or upon the
   suggestion of a State commission, or at the request of any interested party,
   shall  determine that it is desirable to refer a matter arising in the
   administration of the Communications Act of 1934 to a board to be composed
   of a member or members from the State or States affected or to be affected
   by such matter, the procedure shall be as follows:

   The  Federal  Commission  will send a request to each interested State
   commission to nominate a specified number of members to serve on such board.

   The representation of each State concerned shall be equal, unless one or
   more  of  the  States  affected  chooses  to waive such right of equal
   representation. When the member or members of any board have been nominated
   and appointed, in accordance with the provisions of the Communications Act
   of 1934, the Federal Commission will make an order referring the particular
   matter  to  such board, and such order shall fix the time and place of
   hearing, define the force and effect the action of the board shall have, and
   the  manner  in which its proceedings shall be conducted. The rules of
   practice and procedure, as from time to time adopted or prescribed by the
   Federal Commission, shall govern such board, as far as applicable.

procedure governing joint hearings

   Whenever  the  Federal  Commission, either upon its own motion or upon
   suggestions made by or on behalf of any interested State commission or
   commissions, shall determine that a joint hearing under said sec. 410(b) is
   desirable  in  connection  with any matter pending before said Federal
   Commission, the procedure shall be as follows:

   (a) The Federal Commission will notify the general solicitor of the National
   Association of Railroad and Utilities Commissioners that said Association,
   or, if not more than eight States are within the territory affected by the
   proceeding,  the  State  commissions  interested,  are invited to name
   Cooperating Commissioners to sit with the Federal Commission for the hearing
   and consideration of said proceeding.

   (b)  Upon  receipt of any notice from said Federal Commission inviting
   cooperation,  if  not more than eight States are involved, the general
   solicitor shall at once advise the State commissions of said States, they
   being represented in the membership of the association, of the receipt of
   such notice, and shall request each such commission to give advice to him in
   writing,  before  a  date  to be indicated by him in his communication
   requesting such advice (1) whether such commission will cooperate in said
   proceeding, (2) if it will, by what commissioner it will be represented
   therein.

   (c) Upon the basis of replies received, the general solicitor shall advise
   the Federal Commission what States, if any, are desirous of making the
   proceeding cooperative and by what commissioners they will be represented,
   and he shall give like advice to each State commission interested therein.

   (d) If more than eight States are interested in the proceeding, because
   within territory for which rates will be under consideration therein, the
   general solicitor shall advise the president of the association that the
   association  is  invited  to  name  a  cooperating  committee of State
   commissioners representing the States interested in said proceeding.

   The  president  of  the association shall thereupon advise the general
   solicitor in writing (1) whether the invitation is accepted on behalf of the
   association,  and  (2) the names of commissioners selected to sit as a
   cooperating committee. The president of the association shall have the
   authority to accept or to decline said invitation for the association, and
   to  determine  the  number  of commissioners who shall be named on the
   cooperating committee, provided that his action shall be concurred in by the
   chairman of the association's executive committee. In the event of any
   failure of the president of the association and chairman of its executive
   committee to agree, the second vice president of the association (or the
   chairman  of  its  committee  on cooperation between State and Federal
   commissions, if there shall be no second vice president) shall be consulted,
   and the majority opinion of the three shall prevail. Consultations and
   expressions of opinion may be by mail or telegraph.

   (e) If any proceeding, involving more than eight States, is pending before
   the Federal Commission, in which cooperation has not been invited by that
   Commission, which the association's president and the first and second vice
   presidents,  or any two of them, consider should be made a cooperating
   proceeding,  they may instruct the general solicitor to suggest to the
   Federal Commission that the proceeding be made a cooperative proceeding; and
   any  State  commission considering that said proceeding should be made
   cooperative may request the president of the association or the chairman of
   its executive committee to make such suggestion after consideration with the
   executive officers above named. If said Federal Commission shall assent to
   the suggestion, made as aforesaid, the president of the association shall
   have the same authority to proceed, and shall proceed in the appointment of
   a cooperating committee, as is provided in other cases involving more than
   eight States, wherein the Federal Commission has invited cooperation, and
   the invitation has been accepted.

   (f) Whenever any case is pending before the Federal Commission involving
   eight States or less, which a commission of any of said States considers
   should be made cooperative, such commission, either directly or through the
   general solicitor of the association, may suggest to the Federal Commission
   that the proceeding be made cooperative. If said Federal Commission accedes
   to such suggestion, it will notify the general solicitor of the association
   to that effect and thereupon the general solicitor shall proceed as is
   provided in such case when the invitation has been made by the Federal
   Commission without State commission suggestion.

appointment of cooperating commissioners by the president

   In  the appointment of any cooperating committee, the president of the
   association shall make appointments only from commissions of the States
   interested in the particular proceeding in which the committee is to serve.
   He shall exercise his best judgment to select cooperating commissioners who
   are especially qualified to serve upon cooperating committees by reason of
   their ability and fitness; and in no case shall he appoint a commissioner
   upon  a cooperating committee until he shall have been advised by such
   commissioner that it will be practicable for him to attend the hearings in
   the proceeding in which the committee is to serve, including the arguments
   therein, and the cooperative conferences, which may be held following the
   submission of the proceeding, to an extent that will reasonably enable him
   to be informed upon the issues in the proceeding and to form a reasonable
   judgment in the matters to be determined.

tenure of cooperators

   (a) No State commissioner shall sit in a cooperative proceeding under this
   plan  except a commissioner who has been selected by his commission to
   represent it in a proceeding involving eight States or less, or has been
   selected by the president of the association to sit in a case involving more
   than eight States, in the manner hereinbefore provided.

   (b) A commissioner who has been selected, as hereinbefore provided, to serve
   as a member of a cooperating committee in any proceeding, shall without
   further appointment, and without regard to the duration of time involved,
   continue to serve in said proceeding until the final disposition thereof,
   including hearings and conferences after any order or reopening, provided
   that he shall continue to be a State commissioner.

   (c) No member of a cooperating committee shall have any right or authority
   to designate another commissioner to serve in his place at any hearing or
   conference in any proceeding in which he has been appointed to serve.

   (d) Should a vacancy occur upon any cooperating committee, in a proceeding
   involving more than eight States, by reason of the death of any cooperating
   commissioner, or of his ceasing to be a State commissioner, or of other
   inability to serve, it shall be the duty of the president of the association
   to  fill  the vacancy by appointment, if, after communication with the
   chairman of the cooperating committee, it be deemed necessary to fill such
   vacancy.

   (e) In the event of any such vacancy occurring upon a cooperating committee
   involving not more than eight States, the vacancy shall be filled by the
   commission from which the vacancy occurs.

cooperating committee to determine respecting any report of statement of its
attitude

   (a) Whenever a cooperating committee shall have concluded its work, or shall
   deem such course advisable, the committee shall consider whether it is
   necessary  and  desirable  to  make  a  report to the interested State
   commissions, and, if it shall determine to make a report, it shall cause the
   same to be distributed through the secretary of the association, or through
   the general solicitor to all interested commissions.

   (b) If a report of the Federal Commission will accompany any order to be
   made in said proceeding, the Federal Commission will state therein the
   concurrence or nonconcurrence of said cooperating committee in the decision
   or order of said Federal Commission.

construction hereof in certain respects expressly provided

   It is understood and provided that no State or States shall be deprived of
   the right of participation and cooperation as hereinbefore provided because
   of nonmembership in the association. With respect to any such State or
   States, all negotiations herein specified to be carried on between the
   Federal Commission and any officer of such association shall be conducted by
   the Federal Commission directly with the chairman of the commission of such
   State or States.

   [ 28 FR 12462 , Nov. 22, 1963, as amended at  29 FR 4801 , Apr. 4, 1964]

   return arrow Back to Top

Appendix B to Part 1—Nationwide Programmatic Agreement for the Collocation of
Wireless Antennas

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 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 CFR 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.
   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 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 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 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.

II. 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 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

   1Suitable methods for determining the age of a building include, but are not
   limited to: (1) obtaining the opinon of a consultant who meets the Secretary
   of Interior's Professional Qualifications Standards (36 CFR Part 61) or (2)
   consulting public records.

   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. 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. Termination

   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  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

    Date:

   Advisory Council on Historic Preservation

    Date:

   National Conference of State Historic Preservation Officers

    Date:

   [ 70 FR 578 , Jan. 4, 2005]

   return arrow Back to Top

Appendix C to Part 1—Nationwide Programmatic Agreement Regarding the Section
106 National Historic Preservation Act Review Process

Nationwide Programmatic Agreement for Review of Effects on Historic Properties
for Certain Undertakings Approved by the Federal Communications Commission

Executed by the Federal Communications Commission, the National Conference of
State Historic Preservation Officers and the Advisory Council on Historic
Preservation

September 2004

Introduction

   Whereas, Section 106 of the National Historic Preservation Act of 1966, as
   amended (“NHPA”) (codified at 16 U.S.C. 470f), requires federal agencies to
   take into account the effects of certain of their Undertakings on Historic
   Properties (see Section II, below), included in or eligible for inclusion in
   the National Register of Historic Places (“National Register”), and to
   afford  the  Advisory  Council  on Historic Preservation (“Council”) a
   reasonable opportunity to comment with regard to such Undertakings; and

   Whereas, under the authority granted by Congress in the Communications Act
   of 1934, as amended (47 U.S.C. 151 et seq.), the Federal Communications
   Commission (“Commission”) establishes rules and procedures for the licensing
   of non-federal government communications services, and the registration of
   certain antenna structures in the United States and its Possessions and
   Territories; and

   Whereas, Congress and the Commission have deregulated or streamlined the
   application process regarding the construction of individual Facilities in
   many of the Commission's licensed services; and

   Whereas, under the framework established in the Commission's environmental
   rules,  47  CFR 1.1301-1.1319, Commission licensees and applicants for
   authorizations and antenna structure registrations are required to prepare,
   and  the Commission is required to independently review and approve, a
   pre-construction Environmental Assessment (“EA”) in cases where a proposed
   tower  or  antenna may significantly affect the environment, including
   situations where a proposed tower or antenna may affect Historic Properties
   that are either listed in or eligible for listing in the National Register,
   including properties of religious and cultural importance to an Indian tribe
   or Native Hawaiian organization (“NHO”) that meet the National Register
   criteria; and

   Whereas, the Council has adopted rules implementing Section 106 of the NHPA
   (codified at 36 CFR Part 800) and setting forth the process, called the
   “Section 106 process,” for complying with the NHPA; and

   Whereas, pursuant to the Commission's rules and the terms of this Nationwide
   Programmatic Agreement for Review of Effects on Historic Properties for
   Certain Undertakings Approved by the Federal Communications Commission
   (“Nationwide  Agreement”),  Applicants  (see Section II.A.2) have been
   authorized, consistent with the terms of the memorandum from the Council to
   the Commission, titled “Delegation of Authority for the Section 106 Review
   of Telecommunications Projects,” dated September 21, 2000, to initiate,
   coordinate, and assist the Commission with compliance with many aspects of
   the Section 106 review process for their Facilities; and

   Whereas,  in August 2000, the Council established a Telecommunications
   Working Group (the “Working Group”) to provide a forum for the Commission,
   the Council, the National Conference of State Historic Preservation Officers
   (“Conference”), individual State Historic Preservation Officers (“SHPOs”),
   Tribal   Historic   Preservation   Officers  (“THPOs”),  other  tribal
   representatives,  communications  industry  representatives, and other
   interested members of the public to discuss improved Section 106 compliance
   and to develop methods of streamlining the Section 106 review process; and

   Whereas, Section 214 of the NHPA (16 U.S.C. 470v) authorizes the Council to
   promulgate regulations implementing exclusions from Section 106 review, and
   Section 800.14(b) of the Council's regulations (36 CFR 800.14(b)) allows for
   programmatic agreements to streamline and tailor the Section 106 review
   process to particular federal programs, if they are consistent with the
   Council's regulations; and

   Whereas, the Commission, the Council, and the Conference executed on March
   16, 2001, the Nationwide Programmatic Agreement for the Collocation of
   Wireless Antennas (the “Collocation Agreement”), in order to streamline
   review  for  the  collocation of antennas on existing towers and other
   structures and thereby reduce the need for the construction of new towers
   (Attachment 1 to this Nationwide Agreement); and

   Whereas, the Council, the Conference, and the Commission now agree it is
   desirable to further streamline and tailor the Section 106 review process
   for Facilities that are not excluded from Section 106 review under the
   Collocation Agreement while protecting Historic Properties that are either
   listed in or eligible for listing in the National Register; and

   Whereas, the Working Group agrees that a nationwide programmatic agreement
   is  a desirable and effective way to further streamline and tailor the
   Section 106 review process as it applies to Facilities; and

   Whereas, this Nationwide Agreement will, upon its execution by the Council,
   the  Conference,  and  the Commission, constitute a substitute for the
   Council's rules with respect to certain Commission Undertakings; and

   Whereas, the Commission sought public comment on a draft of this Nationwide
   Agreement through a Notice of Proposed Rulemaking released on June 9, 2003;

   Whereas, the Commission has actively sought and received participation and
   comment from Indian tribes and NHOs regarding this Nationwide Agreement; and

   Whereas, the Commission has consulted with federally recognized Indian
   tribes  regarding this Nationwide Agreement (see Report and Order, FCC
   04-222, at ¶31); and

   Whereas,  this  Nationwide  Agreement  provides for appropriate public
   notification and participation in connection with the Section 106 process;
   and

   Whereas, Section 101(d)(6) of the NHPA provides that federal agencies “shall
   consult with any Indian tribe or Native Hawaiian organization” that attaches
   religious and cultural significance to properties of traditional religious
   and cultural importance that may be determined to be eligible for inclusion
   in the National Register and that might be affected by a federal undertaking
   (16 U.S.C. 470a(d)(6)); and

   Whereas, the Commission has adopted a “Statement of Policy on Establishing a
   Government-to-Government Relationship with Indian Tribes” dated June 23,
   2000,  pursuant  to  which the Commission: 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;
   affirms the federal trust relationship with Indian tribes, and recognizes
   that this historic trust relationship requires the federal government to
   adhere to certain fiduciary standards in its dealings with Indian tribes;
   commits to working with Indian tribes on a government-to-government basis
   consistent  with the principles of tribal self-governance; commits, in
   accordance with the federal government's trust responsibility, and to the
   extent practicable, to consult with tribal governments prior to implementing
   any regulatory action or policy that will significantly or uniquely affect
   tribal governments, their land and resources; strives to develop working
   relationships  with  tribal governments, and will endeavor to identify
   innovative mechanisms to facilitate tribal consultations in the Commission's
   regulatory processes; and endeavors to streamline its administrative process
   and procedures to remove undue burdens that its decisions and actions place
   on Indian tribes; and

   Whereas, the Commission does not delegate under this Programmatic Agreement
   any portion of its responsibilities to Indian tribes and NHOs, including its
   obligation to consult under Section 101(d)(6) of the NHPA; and

   Whereas, the terms of this Nationwide Agreement are consistent with and do
   not attempt to abrogate the rights of Indian tribes or NHOs to consult
   directly with the Commission regarding the construction of Facilities; and

   Whereas, the execution and implementation of this Nationwide Agreement will
   not  preclude Indian tribes or NHOs, SHPO/THPOs, local governments, or
   members of the public from filing complaints with the Commission or the
   Council regarding effects on Historic Properties from any Facility or any
   activity covered under the terms of the Nationwide Agreement; and

   Whereas, Indian tribes and NHOs may request Council involvement in Section
   106 cases that present issues of concern to Indian tribes or NHOs (see 36
   CFR Part 800, Appendix A, Section (c)(4)); and

   Whereas, the Commission, after consulting with federally recognized Indian
   tribes, has developed an electronic Tower Construction Notification System
   through which Indian tribes and NHOs may voluntarily identify the geographic
   areas  in which Historic Properties to which they attach religious and
   cultural  significance  may be located, Applicants may ascertain which
   participating Indian tribes and NHOs have identified such an interest in the
   geographic  area  in  which  they propose to construct Facilities, and
   Applicants may voluntarily provide electronic notification of proposed
   Facilities construction for the Commission to forward to participating
   Indian tribes, NHOs, and SHPOs/THPOs; and

   Whereas, the Council, the Conference and the Commission recognize that
   Applicants' use of qualified professionals experienced with the NHPA and
   Section 106 can streamline the review process and minimize potential delays;
   and

   Whereas,  the  Commission  has created a position and hired a cultural
   resources professional to assist with the Section 106 process; and

   Whereas, upon execution of this Nationwide Agreement, the Council may still
   provide advisory comments to the Commission regarding the coordination of
   Section 106 reviews; notify the Commission of concerns raised by consulting
   parties and the public regarding an Undertaking; and participate in the
   resolution  of  adverse  effects  for complex, controversial, or other
   non-routine projects;

   Now Therefore, in consideration of the above provisions and of the covenants
   and  agreements  contained herein, the Council, the Conference and the
   Commission (the “Parties”) agree as follows:

I. Applicability and Scope of This Nationwide Agreement

   A. This Nationwide Agreement (1) Excludes from Section 106 review certain
   Undertakings involving the construction and modification of Facilities, and
   (2)  streamlines  and tailors the Section 106 review process for other
   Undertakings involving the construction and modification of Facilities. An
   illustrative list of Commission activities in relation to which Undertakings
   covered by this Agreement may occur is provided as Attachment 2 to this
   Agreement.

   B.  This  Nationwide Agreement applies only to federal Undertakings as
   determined by the Commission (“Undertakings”). The Commission has sole
   authority to determine what activities undertaken by the Commission or its
   Applicants constitute Undertakings within the meaning of the NHPA. Nothing
   in this Agreement shall preclude the Commission from revisiting or affect
   the existing ability of any person to challenge any prior determination of
   what does or does not constitute an Undertaking. Maintenance and servicing
   of  Towers,  Antennas,  and  associated equipment are not deemed to be
   Undertakings subject to Section 106 review.

   C. This Agreement does not apply to Antenna Collocations that are exempt
   from Section 106 review under the Collocation Agreement (see Attachment 1).
   Pursuant to the terms of the Collocation Agreement, such Collocations shall
   not be subject to the Section 106 review process and shall not be submitted
   to the SHPO/THPO for review. This Agreement does apply to collocations that
   are not exempt from Section 106 review under the Collocation Agreement.

   D. This Agreement does not apply on “tribal lands” as defined under Section
   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.”). This Nationwide Agreement, however,
   will apply on tribal lands should a tribe, pursuant to appropriate tribal
   procedures  and upon reasonable notice to the Council, Commission, and
   appropriate SHPO/THPO, elect to adopt the provisions of this Nationwide
   Agreement. Where a tribe that has assumed SHPO functions pursuant to Section
   101(d)(2) of the NHPA (16 U.S.C. 470(d)(2)) has agreed to application of
   this Nationwide Agreement on tribal lands, the term SHPO/THPO denotes the
   Tribal Historic Preservation Officer with respect to review of proposed
   Undertakings on those tribal lands. Where a tribe that has not assumed SHPO
   functions has agreed to application of this Nationwide Agreement on tribal
   lands, the tribe may notify the Commission of the tribe's intention to
   perform the duties of a SHPO/THPO, as defined in this Nationwide Agreement,
   for proposed Undertakings on its tribal lands, and in such instances the
   term SHPO/THPO denotes both the State Historic Preservation Officer and the
   tribe's  authorized  representative.  In all other instances, the term
   SHPO/THPO denotes the State Historic Preservation Officer.

   E. This Nationwide Agreement governs only review of Undertakings under
   Section  106 of the NHPA. Applicants completing the Section 106 review
   process  under the terms of this Nationwide Agreement may not initiate
   construction without completing any environmental review that is otherwise
   required for effects other than historic preservation under the Commission's
   rules (See 47 CFR 1.1301-1.1319). Completion of the Section 106 review
   process under this Nationwide Agreement satisfies an Applicant's obligations
   under the Commission's rules with respect to Historic Properties, except for
   Undertakings that have been determined to have an adverse effect on Historic
   Properties  and  that  therefore  require preparation and filing of an
   Environmental Assessment (See 47 CFR 1.1307(a)(4)).

   F.   This  Nationwide  Agreement  does  not  govern  any  Section  106
   responsibilities that agencies other than the Commission may have with
   respect to those agencies' federal Undertakings.

II. Definitions

   A. The following terms are used in this Nationwide Agreement as defined
   below:

   1.  Antenna.  An  apparatus designed for the purpose of emitting radio
   frequency  (“RF”)  radiation, to be operated or operating from a fixed
   location pursuant to Commission authorization, for the transmission of
   writing, signs, signals, data, images, pictures, and sounds of all kinds,
   including the transmitting device and any on-site equipment, switches,
   wiring, cabling, power sources, shelters or cabinets associated with that
   antenna and added to a Tower, structure, or building as part of the original
   installation of the antenna. For most services, an Antenna will be mounted
   on or in, and is distinct from, a supporting structure such as a Tower,
   structure or building. However, in the case of AM broadcast stations, the
   entire Tower or group of Towers constitutes the Antenna for that station.
   For purposes of this Nationwide Agreement, the term Antenna does not include
   unintentional radiators, mobile stations, or devices authorized under Part
   15 of the Commission's rules.

   2. Applicant. A Commission licensee, permittee, or registration holder, or
   an applicant or prospective applicant for a wireless or broadcast license,
   authorization or antenna structure registration, and the duly authorized
   agents, employees, and contractors of any such person or entity.

   3. Area of Potential Effects (“APE”). The geographic area or areas within
   which an Undertaking may directly or indirectly cause alterations in the
   character or use of Historic Properties, if any such properties exist.

   4. Collocation. The mounting or installation of an Antenna on an existing
   Tower,  building,  or  structure for the purpose of transmitting radio
   frequency signals for telecommunications or broadcast purposes.

   5. Effect. An alteration to the characteristics of a Historic Property
   qualifying it for inclusion in or eligibility for the National Register.

   6.  Experimental  Authorization.  An  authorization  issued to conduct
   experimentation utilizing radio waves for gathering scientific or technical
   operation  data  directed  toward  the  improvement or extension of an
   established service and not intended for reception and use by the general
   public. “Experimental Authorization” does not include an “Experimental
   Broadcast Station” authorized under Part 74 of the Commission's rules.

   7. Facility. A Tower or an Antenna. The term Facility may also refer to a
   Tower and its associated Antenna(s).

   8. Field Survey. A research strategy that utilizes one or more visits to the
   area where construction is proposed as a means of identifying Historic
   Properties.

   9. Historic Property. Any prehistoric or historic district, site, building,
   structure, or object included in, or eligible for inclusion in, the National
   Register maintained by the Secretary of the Interior. This term includes
   artifacts, records, and remains that are related to and located within such
   properties.  The term includes properties of traditional religious and
   cultural  importance  to an Indian tribe or NHO that meet the National
   Register criteria.

   10. National Register. The National Register of Historic Places, maintained
   by the Secretary of the Interior's office of the Keeper of the National
   Register.

   11.  SHPO/THPO  Inventory.  A  set  of  records of previously gathered
   information, authorized by state or tribal law, on the absence, presence and
   significance of historic and archaeological resources within the state or
   tribal land.

   12. Special Temporary Authorization. Authorization granted to a permittee or
   licensee to allow the operation of a station for a limited period at a
   specified variance from the terms of the station's permanent authorization
   or requirements of the Commission's rules applicable to the particular class
   or type of station.

   13.  Submission  Packet. The document to be submitted initially to the
   SHPO/THPO  to  facilitate  review  of the Applicant's findings and any
   determinations  with  regard  to  the potential impact of the proposed
   Undertaking on Historic Properties in the APE. There are two Submission
   Packets: (a) The New Tower Submission Packet (FCC Form 620) (See Attachment
   3) and (b) The Collocation Submission Packet (FCC Form 621) (See Attachment
   4). Any documents required to be submitted along with a Form are part of the
   Submission Packet.

   14. Tower. Any structure built for the sole or primary purpose of supporting
   Commission-licensed or authorized Antennas, including the on-site fencing,
   equipment, switches, wiring, cabling, power sources, shelters, or cabinets
   associated  with that Tower but not installed as part of an Antenna as
   defined herein.

   B.  All  other terms not defined above or elsewhere in this Nationwide
   Agreement shall have the same meaning as set forth in the Council's rules
   section on Definitions (36 CFR 800.16) or the Commission's rules (47 CFR
   Chapter I).

   C. For the calculation of time periods under this Agreement, “days” mean
   “calendar days.” Any time period specified in the Agreement that ends on a
   weekend or a Federal or State holiday is extended until the close of the
   following business day.

   D. Written communications include communications by e-mail or facsimile.

III. Undertakings Excluded From Section 106 Review

   Undertakings  that  fall within the provisions listed in the following
   sections III.A. through III.F. are excluded from Section 106 review by the
   SHPO/THPO, the Commission, and the Council, and, accordingly, shall not be
   submitted to the SHPO/THPO for review. The determination that an exclusion
   applies to an Undertaking should be made by an authorized individual within
   the Applicant's organization, and Applicants should retain documentation of
   their  determination that an exclusion applies. Concerns regarding the
   application of these exclusions from Section 106 review may be presented to
   and considered by the Commission pursuant to Section XI.

   A.  Enhancement of a tower and any associated excavation that does not
   involve a collocation and does not substantially increase the size of the
   existing  tower,  as  defined in the Collocation Agreement. For towers
   constructed after March 16, 2001, this exclusion applies only if the tower
   has  completed  the  Section  106  review  process  and any associated
   environmental reviews required by the Commission.

   B. Construction of a replacement for an existing communications tower and
   any associated excavation that does not substantially increase the size of
   the existing tower under elements 1-3 of the definition as defined in the
   Collocation Agreement (see Attachment 1 to this Agreement, Stipulation
   1.c.1-3) and that does not expand the boundaries of the leased or owned
   property surrounding the tower by more than 30 feet in any direction or
   involve excavation outside these expanded boundaries or outside any existing
   access or utility easement related to the site. For towers constructed after
   March 16, 2001, this exclusion applies only if the tower has completed the
   Section 106 review process and any associated environmental reviews required
   by the Commission's rules.

   C. Construction of any temporary communications Tower, Antenna structure, or
   related  Facility that involves no excavation or where all areas to be
   excavated will be located in areas described in Section VI.D.2.c.i below,
   including but not limited to the following:

   1. A Tower or Antenna authorized by the Commission for a temporary period,
   such as any Facility authorized by a Commission grant of Special Temporary
   Authority (“STA”) or emergency authorization;

   2. A cell on wheels (COW) transmission Facility;

   3. A broadcast auxiliary services truck, TV pickup station, remote pickup
   broadcast station (e.g., electronic newsgathering vehicle) authorized under
   Part 74 or temporary fixed or transportable earth station in the fixed
   satellite service (e.g., satellite newsgathering vehicle) authorized under
   Part 25;

   4. A temporary ballast mount Tower;

   5.  Any  Facility  authorized by a Commission grant of an experimental
   authorization.

   For purposes of this Section III.C, the term “temporary” means “for no more
   than twenty-four months duration except in the case of those Facilities
   associated with national security.”

   D. Construction of a Facility less than 200 feet in overall height above
   ground level in an existing industrial park,1 commercial strip mall,2 or
   shopping center3 that occupies a total land area of 100,000 square feet or
   more, provided that the industrial park, strip mall, or shopping center is
   not  located within the boundaries of or within 500 feet of a Historic
   Property, as identified by the Applicant after a preliminary search of
   relevant records. Proposed Facilities within this exclusion must complete
   the process of participation of Indian tribes and NHOs pursuant to Section
   IV of this Agreement. If as a result of this process the Applicant or the
   Commission  identifies  a  Historic Property that may be affected, the
   Applicant must complete the Section 106 review process pursuant to this
   Agreement notwithstanding the exclusion.

   1A tract of land that is planned, developed, and operated as an integrated
   facility for a number of individual industrial uses, with consideration to
   transportation facilities, circulation, parking, utility needs, aesthetics
   and compatibility.

   2A structure or grouping of structures, housing retail business, set back
   far enough from the street to permit parking spaces to be placed between the
   building entrances and the public right of way.

   3A group of commercial establishments planned, constructed, and managed as a
   total entity, with customer and employee parking provided on-site, provision
   for goods delivery separated from customer access, aesthetic considerations
   and protection from the elements, and landscaping and signage in accordance
   with an approved plan.

   E. Construction of a Facility in or within 50 feet of the outer boundary of
   a right-of-way designated by a Federal, State, local, or Tribal government
   for  the  location  of  communications  Towers or above-ground utility
   transmission or distribution lines and associated structures and equipment
   and in active use for such purposes, provided:

   1. The proposed Facility would not constitute a substantial increase in
   size, under elements 1-3 of the definition in the Collocation Agreement,
   over existing structures located in the right-of-way within the vicinity of
   the proposed Facility, and;

   2. The proposed Facility would not be located within the boundaries of a
   Historic Property, as identified by the Applicant after a preliminary search
   of relevant records.

   Proposed Facilities within this exclusion must complete the process of
   participation of Indian tribes and NHOs pursuant to Section IV of this
   Agreement. If as a result of this process the Applicant or the Commission
   identifies a Historic Property that may be affected, the Applicant must
   complete  the  Section  106  review process pursuant to this Agreement
   notwithstanding the exclusion.

   F. Construction of a Facility in any area previously designated by the
   SHPO/THPO at its discretion, following consultation with appropriate Indian
   tribes and NHOs, as having limited potential to affect Historic Properties.
   Such designation shall be documented by the SHPO/THPO and made available for
   public review.

IV. Participation of Indian Tribes and Native Hawaiian Organizations in
Undertakings Off Tribal Lands

   A. The Commission recognizes its responsibility to carry out consultation
   with  any  Indian  tribe  or  NHO that attaches religious and cultural
   significance to a Historic Property if the property may be affected by a
   Commission  undertaking.  This  responsibility  is founded in Sections
   101(d)(6)(a-b) and 106 of the NHPA (16 U.S.C. 470a(d)(6)(a-b) and 470f), the
   regulations of the Council (36 CFR Part 800), the Commission's environmental
   regulations (47 CFR 1.1301-1.1319), and 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. This historic
   trust relationship requires the federal government to adhere to certain
   fiduciary  standards  in  its dealings with Indian Tribes. (Commission
   Statement of Policy on Establishing a Government-to-Government Relationship
   with Indian Tribes).

   B.  As an initial step to enable the Commission to fulfill its duty of
   consultation, Applicants shall use reasonable and good faith efforts to
   identify any Indian tribe or NHO that may attach religious and cultural
   significance to Historic Properties that may be affected by an Undertaking.
   Applicants should be aware that frequently, Historic Properties of religious
   and  cultural  significance  to  Indian tribes and NHOs are located on
   ancestral, aboriginal, or ceded lands of such tribes and organizations and
   Applicants  should  take  this  into account when complying with their
   responsibilities. Where an Indian tribe or NHO has voluntarily provided
   information to the Commission's Tower Construction Notification System
   regarding the geographic areas in which Historic Properties of religious and
   cultural significance to that Indian tribe or NHO may be located, reference
   to the Tower Construction Notification System shall constitute a reasonable
   and good faith effort at identification with respect to that Indian tribe or
   NHO. In addition, such reasonable and good faith efforts may include, but
   are  not  limited  to,  seeking relevant information from the relevant
   SHPO/THPO, Indian tribes, state agencies, the U.S. Bureau of Indian Affairs
   (“BIA”), or, where applicable, any federal agency with land holdings within
   the  state  (e.g., the U.S. Bureau of Land Management). Although these
   agencies can provide useful information in identifying potentially affected
   Indian tribes, contacting BIA, the SHPO or other federal and state agencies
   is not a substitute for seeking information directly from Indian tribes that
   may attach religious and cultural significance to a potentially affected
   Historic Property, as described below.

   C. After the Applicant has identified Indian tribes and NHOs that may attach
   religious  and  cultural significance to potentially affected Historic
   Properties,  the Commission has the responsibility, and the Commission
   imposes on the Applicant the obligation, to ensure that contact is made at
   an early stage in the planning process with such Indian tribes and NHOs in
   order to begin the process of ascertaining whether such Historic Properties
   may be affected. This initial contact shall be made by the Commission or the
   Applicant, in accordance with the wishes of the Indian tribe or NHO. This
   contact shall constitute only an initial effort to contact the Indian tribe
   or NHO, and does not in itself fully satisfy the Applicant's obligations or
   substitute for government-to-government consultation unless the Indian tribe
   or NHO affirmatively disclaims further interest or the Indian tribe or NHO
   has otherwise agreed that such contact is sufficient. Depending on the
   preference of the Indian tribe or NHO, the means of initial contact may
   include, without limitation:

   1. Electronic notification through the Commission's Tower Construction
   Notification System;

   2.  Written  communication  from  the Commission at the request of the
   Applicant;

   3. Written, e-mail, or telephonic notification directly from the Applicant
   to the Indian tribe or NHO;

   4. Any other means that the Indian Tribe or NHO has informed the Commission
   are acceptable, including through the adoption of best practices pursuant to
   Section IV.J, below; or

   5. Any other means to which an Indian tribe or NHO and an Applicant have
   agreed pursuant to Section IV.K, below.

   D. The Commission will use its best efforts to ascertain the preferences of
   each Indian tribe and NHO for initial contact, and to make these preferences
   available to Applicants in a readily accessible format. In addition, the
   Commission will use its best efforts to ascertain, and to make available to
   Applicants, any locations or types of construction projects, within the
   broad  geographic  areas in which Historic Properties of religious and
   cultural significance to an Indian tribe or NHO may be located, for which
   the Indian tribe or NHO does not expect notification. To the extent they are
   comfortable doing so, the Commission encourages Indian tribes and NHOs to
   accept  the Tower Construction Notification System as an efficient and
   thorough means of making initial contact.

   E. In the absence of any contrary indication of an Indian tribe's or NHO's
   preference, where an Applicant does not have a pre-existing relationship
   with an Indian tribe or NHO, initial contact with the Indian tribe or NHO
   shall be made through the Commission. Unless the Indian tribe or NHO has
   indicated otherwise, the Commission may make this initial contact through
   the  Tower  Construction  Notification System. An Applicant that has a
   pre-existing relationship with an Indian tribe or NHO shall make initial
   contact in the manner that is customary to that relationship or in such
   other manner as may be accepted by the Indian tribe or NHO. An Applicant
   shall  copy the Commission on any initial written or electronic direct
   contact with an Indian tribe or NHO, unless the Indian tribe or NHO has
   agreed through a best practices agreement or otherwise that such copying is
   not necessary.

   F. Applicants' direct contacts with Indian tribes and NHOs, where accepted
   by the Indian tribe or NHO, shall be made in a sensitive manner that is
   consistent with the reasonable wishes of the Indian tribe or NHO, where such
   wishes are known or can be reasonably ascertained. In general, unless an
   Indian tribe or NHO has provided guidance to the contrary, Applicants shall
   follow the following guidelines:

   1. All communications with Indian tribes shall be respectful of tribal
   sovereignty;

   2.  Communications shall be directed to the appropriate representative
   designated or identified by the tribal government or other governing body;

   3. Applicants shall provide all information reasonably necessary for the
   Indian tribe or NHO to evaluate whether Historic Properties of religious and
   cultural significance may be affected. The parties recognize that it may be
   neither feasible nor desirable to provide complete information about the
   project at the time of initial contact, particularly when initial contact is
   made early in the process. Unless the Indian tribe or NHO affirmatively
   disclaims interest, however, it shall be provided with complete information
   within the earliest reasonable time frame;

   4. The Applicant must ensure that Indian tribes and NHOs have a reasonable
   opportunity to respond to all communications. Ordinarily, 30 days from the
   time the relevant tribal or NHO representative may reasonably be expected to
   have received an inquiry shall be considered a reasonable time. Should a
   tribe or NHO request additional time to respond, the Applicant shall afford
   additional  time as reasonable under the circumstances. However, where
   initial  contact  is made automatically through the Tower Construction
   Notification System, and where an Indian tribe or NHO has stated that it is
   not interested in reviewing proposed construction of certain types or in
   certain  locations, the Applicant need not await a response to contact
   regarding proposed construction meeting that description;

   5.  Applicants  should  not assume that failure to respond to a single
   communication establishes that an Indian tribe or NHO is not interested in
   participating, but should make a reasonable effort to follow up.

   G. The purposes of communications between the Applicant and Indian tribes or
   NHOs are: (1) To ascertain whether Historic Properties of religious and
   cultural significance to the Indian tribe or NHO may be affected by the
   undertaking and consultation is therefore necessary, and (2) where possible,
   with the concurrence of the Indian tribe or NHO, to reach an agreement on
   the  presence  or  absence  of  effects  that may obviate the need for
   consultation.  Accordingly,  the Applicant shall promptly refer to the
   Commission  any  request  from a federally recognized Indian tribe for
   government-to-government consultation. The Commission will then carry out
   government-to-government consultation with the Indian tribe. Applicants
   shall also seek guidance from the Commission in the event of any substantive
   or procedural disagreement with an Indian tribe or NHO, or if the Indian
   tribe or NHO does not respond to the Applicant's inquiries. Applicants are
   strongly advised to seek guidance from the Commission in cases of doubt.

   H. If an Indian tribe or NHO indicates that a Historic Property of religious
   and cultural significance to it may be affected, the Applicant shall invite
   the commenting tribe or organization to become a consulting party. If the
   Indian  tribe  or NHO agrees to become a consulting party, it shall be
   afforded that status and shall be provided with all of the information,
   copies of submissions, and other prerogatives of a consulting party as
   provided for in 36 CFR 800.2.

   I. Information regarding Historic Properties to which Indian tribes or NHOs
   attach religious and cultural significance may be highly confidential,
   private, and sensitive. If an Indian tribe or NHO requests confidentiality
   from the Applicant, the Applicant shall honor this request and shall, in
   turn, request confidential treatment of such materials or information in
   accordance with the Commission's rules and Section 304 of the NHPA (16
   U.S.C. 470w-3(a)) in the event they are submitted to the Commission. The
   Commission shall provide such confidential treatment consistent with its
   rules and applicable federal laws. Although the Commission will strive to
   protect  the  privacy  interests of all parties, the Commission cannot
   guarantee  its  own  ability  or  the ability of Applicants to protect
   confidential, private, and sensitive information from disclosure under all
   circumstances.

   J. In order to promote efficiency, minimize misunderstandings, and ensure
   that communications among the parties are made in accordance with each
   Indian tribe or NHO's reasonable preferences, the Commission will use its
   best efforts to arrive at agreements regarding best practices with Indian
   tribes and NHOs and their representatives. Such best practices may include
   means of making initial contacts with Indian tribes and NHOs as well as
   guidelines for subsequent discussions between Applicants and Indian tribes
   or NHOs in fulfillment of the requirements of the Section 106 process. To
   the extent possible, the Commission will strive to achieve consistency among
   best practice agreements with Indian tribes and NHOs. Where best practices
   exist, the Commission encourages Applicants to follow those best practices.

   K.  Nothing  in  this  Section shall be construed to prohibit or limit
   Applicants  and Indian tribes or NHOs from entering into or continuing
   pre-existing arrangements or agreements governing their contacts, provided
   such arrangements or agreements are otherwise consistent with federal law
   and no modification is made in the roles of other parties to the process
   under this Nationwide Agreement without their consent. Documentation of such
   alternative arrangements or agreements should be filed with the Commission.

V. Public Participation and Consulting Parties

   A. On or before the date an Applicant submits the appropriate Submission
   Packet to the SHPO/THPO, as prescribed by Section VII, below, the Applicant
   shall provide the local government that has primary land use jurisdiction
   over the site of the planned Undertaking with written notification of the
   planned Undertaking.

   B. On or before the date an Applicant submits the appropriate Submission
   Packet to the SHPO/THPO, as prescribed by Section VII, below, the Applicant
   shall provide written notice to the public of the planned Undertaking. Such
   notice may be accomplished (1) through the public notification provisions of
   the relevant local zoning or local historic preservation process for the
   proposed Facility; or (2) by publication in a local newspaper of general
   circulation. In the alternative, an Applicant may use other appropriate
   means of providing public notice, including seeking the assistance of the
   local government.

   C.  The written notice to the local government and to the public shall
   include: (1) The location of the proposed Facility including its street
   address; (2) a description of the proposed Facility including its height and
   type of structure; (3) instruction on how to submit comments regarding
   potential effects on Historic Properties; and (4) the name, address, and
   telephone number of a contact person.

   D. A SHPO/THPO may make available lists of other groups, including Indian
   tribes, NHOs and organizations of Indian tribes or NHOs, which should be
   provided notice for Undertakings to be located in particular areas.

   E.  If the Applicant receives a comment regarding potentially affected
   Historic Properties, the Applicant shall consider the comment and either
   include it in the initial submission to the SHPO/THPO, or, if the initial
   submission has already been made, immediately forward the comment to the
   SHPO/THPO for review. An Applicant need not submit to the SHPO/THPO any
   comment that does not substantially relate to potentially affected Historic
   Properties.

   F. The relevant SHPO/THPO, Indian tribes and NHOs that attach religious and
   cultural significance to Historic Properties that may be affected, and the
   local government are entitled to be consulting parties in the Section 106
   review of an Undertaking. The Council may enter the Section 106 process for
   a given Undertaking, on Commission invitation or on its own decision, in
   accordance with 36 CFR Part 800, Appendix A. An Applicant shall consider all
   written requests of other individuals and organizations to participate as
   consulting parties and determine which should be consulting parties. An
   Applicant is encouraged to grant such status to individuals or organizations
   with  a demonstrated legal or economic interest in the Undertaking, or
   demonstrated expertise or standing as a representative of local or public
   interest in historic or cultural resources preservation. Any such individual
   or organization denied consulting party status may petition the Commission
   for  review  of  such  denial. Applicants may seek assistance from the
   Commission in identifying and involving consulting parties. All entities
   granted consulting party status shall be identified to the SHPO/THPO as part
   of the Submission Packet.

   G.  Consulting parties are entitled to: (1) Receive notices, copies of
   submission packets, correspondence and other documents provided to the
   SHPO/THPO in a Section 106 review; and (2) be provided an opportunity to
   have their views expressed and taken into account by the Applicant, the
   SHPO/THPO and, where appropriate, by the Commission.

VI. Identification, Evaluation, and Assessment of Effects

   A. In preparing the Submission Packet for the SHPO/THPO and consulting
   parties pursuant to Section VII of this Nationwide Agreement and Attachments
   3 and 4, the Applicant shall: (1) Define the area of potential effects
   (APE); (2) identify Historic Properties within the APE; (3) evaluate the
   historic significance of identified properties as appropriate; and (4)
   assess the effects of the Undertaking on Historic Properties. The standards
   and  procedures  described  below shall be applied by the Applicant in
   preparing  the  Submission  Packet,  by the SHPO/THPO in reviewing the
   Submission  Packet, and where appropriate, by the Commission in making
   findings.

   B. Exclusion of Specific Geographic Areas from Review.

   The SHPO/THPO, consistent with relevant State or tribal procedures, may
   specify geographic areas in which no review is required for direct effects
   on archeological resources or no review is required for visual effects.

   C. Area of Potential Effects.

   1. The term “Area of Potential Effects” is defined in Section II.A.3 of this
   Nationwide Agreement. For purposes of this Nationwide Agreement, the APE for
   direct effects and the APE for visual effects are further defined and are to
   be established as described below.

   2. The APE for direct effects is limited to the area of potential ground
   disturbance  and  any  property,  or any portion thereof, that will be
   physically altered or destroyed by the Undertaking.

   3.  The  APE  for  visual  effects is the geographic area in which the
   Undertaking has the potential to introduce visual elements that diminish or
   alter  the  setting,  including  the landscape, where the setting is a
   character-defining feature of a Historic Property that makes it eligible for
   listing on the National Register.

   4. Unless otherwise established through consultation with the SHPO/THPO, the
   presumed APE for visual effects for construction of new Facilities is the
   area from which the Tower will be visible:

   a. Within a half mile from the tower site if the proposed Tower is 200 feet
   or less in overall height;

   b. Within 3⁄4 of a mile from the tower site if the proposed Tower is more
   than 200 but no more than 400 feet in overall height; or

   c. Wthin 1 1⁄2 miles from the proposed tower site if the proposed Tower is
   more than 400 feet in overall height.

   5. In the event the Applicant determines, or the SHPO/THPO recommends, that
   an alternative APE for visual effects is necessary, the Applicant and the
   SHPO/THPO may mutually agree to an alternative APE.

   6. If the Applicant and the SHPO/THPO, after using good faith efforts,
   cannot reach an agreement on the use of an alternative APE, either the
   Applicant  or the SHPO/THPO may submit the issue to the Commission for
   resolution.  The Commission shall make its determination concerning an
   alternative APE within a reasonable time.

   D. Identification and Evaluation of Historic Properties.

   1. Identification and Evaluation of Historic Properties Within the APE for
   Visual Effects.

   a.  Except  to  identify Historic Properties of religious and cultural
   significance to Indian tribes and NHOs, Applicants shall identify Historic
   Properties within the APE for visual effects by reviewing the following
   records. Applicants are required to review such records only to the extent
   they  are available at the offices of the SHPO/THPO or can be found in
   publicly available sources identified by the SHPO/THPO. With respect to
   these properties, Applicants are not required to undertake a Field Survey or
   other measures other than reviewing these records in order to identify
   Historic Properties:

   i. Properties listed in the National Register;

   ii. Properties formally determined eligible for listing by the Keeper of the
   National Register;

   iii. Properties that the SHPO/THPO certifies are in the process of being
   nominated to the National Register;

   iv.  Properties  previously determined eligible as part of a consensus
   determination of eligibility between the SHPO/THPO and a Federal Agency or
   local  government  representing  the  Department  of Housing and Urban
   Development (HUD); and

   v. Properties listed in the SHPO/THPO Inventory that the SHPO/THPO has
   previously evaluated and found to meet the National Register criteria, and
   that are identified accordingly in the SHPO/THPO Inventory.

   b. At an early stage in the planning process and in accordance with Section
   IV  of  this Nationwide Agreement, the Commission or the Applicant, as
   appropriate, shall gather information from Indian tribes or NHOs identified
   pursuant to Section IV.B to assist in identifying Historic Properties of
   religious  and cultural significance to them within the APE for visual
   effects.  Such  information gathering may include a Field Survey where
   appropriate.

   c. Based on the sources listed above and public comment received pursuant to
   Section V of this Nationwide Agreement, the Applicant shall include in its
   Submission  Packet  a list of properties it has identified as apparent
   Historic Properties within the APE for visual effects.

   i. During the review period described in Section VII.A, the SHPO/THPO may
   identify additional properties included in the SHPO/THPO Inventory and
   located within the APE that the SHPO/THPO considers eligible for listing on
   the National Register, and notify the Applicant pursuant to Section VII.A.4.

   ii. The SHPO/THPO may also advise the Applicant that previously identified
   properties on the list no longer qualify for inclusion in the National
   Register.

   d. Applicants are encouraged at their discretion to use the services of
   professionals  who  meet  the Secretary of the Interior's Professional
   Qualification Standards when identifying Historic Properties within the APE
   for visual effects.

   e. Applicants are not required to evaluate the historic significance of
   properties identified pursuant to Section VI.D.1.a., but may rely on the
   previous  evaluation  of  these  properties.  Applicants may, at their
   discretion, evaluate whether such properties are no longer eligible for
   inclusion in the National Register and recommend to the SHPO/THPO their
   removal from consideration. Any such evaluation shall be performed by a
   professional  who  meets  the Secretary of the Interior's Professional
   Qualification Standards.

   2. Identification and Evaluation of Historic Properties Within the APE for
   Direct Effects.

   a. In addition to the properties identified pursuant to Section VI.D.1,
   Applicants shall make a reasonable good faith effort to identify other above
   ground  and  archeological  Historic  Properties, including buildings,
   structures, and historic districts, that lie within the APE for direct
   effects. Such reasonable and good faith efforts may include a Field Survey
   where appropriate.

   b. Identification and evaluation of Historic Properties within the APE for
   direct effects, including any finding that an archeological Field Survey is
   not required, shall be undertaken by a professional who meets the Secretary
   of the Interior's Professional Qualification Standards. Identification and
   evaluation relating to archeological resources shall be performed by a
   professional  who  meets  the Secretary of the Interior's Professional
   Qualification Standards in archeology.

   c. Except as provided below, the Applicant need not undertake a Field Survey
   for archeological resources where:

   i. the depth of previous disturbance exceeds the proposed construction depth
   (excluding footings and other anchoring mechanisms) by at least 2 feet as
   documented in the Applicant's siting analysis; or

   ii. geomorphological evidence indicates that cultural resource-bearing soils
   do not occur within the project area or may occur but at depths that exceed
   2 feet below the proposed construction depth.

   d. At an early stage in the planning process and in accordance with Section
   IV  of  this Nationwide Agreement, the Commission or the Applicant, as
   appropriate, shall gather information from Indian tribes or NHOs identified
   pursuant to Section IV.B to assist in identifying archeological Historic
   Properties of religious and cultural significance to them within the APE for
   direct effects. If an Indian tribe or NHO provides evidence that supports a
   high probability of the presence of intact archeological Historic Properties
   within  the  APE  for  direct  effects, the Applicant shall conduct an
   archeological Field Survey notwithstanding Section VI.D.2.c.

   e. Where the Applicant pursuant to Sections VI.D.2.c and VI.D.2.d finds that
   no  archeological  Field  Survey is necessary, it shall include in its
   Submission Packet a report substantiating this finding. During the review
   period described in Section VII.A, the SHPO/THPO may, based on evidence that
   supports a high probability of the presence of intact archeological Historic
   Properties within the APE for direct effects, notify the Applicant that the
   Submission  Packet is inadequate without an archeological Field Survey
   pursuant to Section VII.A.4.

   f. The Applicant shall conduct an archeological Field Survey within the APE
   for direct effects if neither of the conditions in Section VI.D.2.c applies,
   or if required pursuant to Section VI.D.2.d or e. The Field Survey shall be
   conducted in consul-tation with the SHPO/THPO and consulting Indian tribes
   or NHOs.

   g. The Applicant, in consultation with the SHPO/THPO and appropriate Indian
   tribes or NHOs, shall apply the National Register criteria (36 CFR Part 63)
   to properties identified within the APE for direct effects that have not
   previously  been evaluated for National Register eligibility, with the
   exception of those identified pursuant to Section VI.D.1.a.

   3.  Dispute  Resolution.  Where  there is a disagreement regarding the
   identification or eligibility of a property, and after attempting in good
   faith to resolve the issue the Applicant and the SHPO/THPO continue to
   disagree,  the  Applicant or the SHPO/THPO may submit the issue to the
   Commission. The Commission shall handle such submissions in accordance with
   36 CFR 800.4(c)(2).

   E. Assessment of Effects

   1. Applicants shall assess effects of the Undertaking on Historic Properties
   using the Criteria of Adverse Effect (36 CFR 800.5(a)(1)).

   2. In determining whether Historic Properties in the APE may be adversely
   affected by the Undertaking, the Applicant should consider factors such as
   the topography, vegetation, known presence of Historic Properties, and
   existing land use.

   3. An Undertaking will have a visual adverse effect on a Historic Property
   if  the  visual  effect from the Facility will noticeably diminish the
   integrity of one or more of the characteristics qualifying the property for
   inclusion in or eligibility for the National Register. Construction of a
   Facility will not cause a visual adverse effect except where visual setting
   or visual elements are character-defining features of eligibility of a
   Historic Property located within the APE.

   4. For collocations not excluded from review by the Collocation Agreement or
   this Agreement, the assessment of effects will consider only effects from
   the newly added or modified Facilities and not effects from the existing
   Tower or Antenna.

   5. Assessment pursuant to this Agreement shall be performed by professionals
   who  meet  the  Secretary of the Interior's Professional Qualification
   Standards.

VII. Procedures

A. Use of the Submission Packet

   1. For each Undertaking within the scope of this Nationwide Agreement, the
   Applicant shall initially determine whether there are no Historic Properties
   affected, no adverse effect on Historic Properties, or an adverse effect on
   Historic Properties. The Applicant shall prepare a Submission Packet and
   submit it to the SHPO/THPO and to all consulting parties, including any
   Indian tribe or NHO that is participating as a consulting party.

   2.  The  SHPO/THPO  shall  have  30 days from receipt of the requisite
   documentation to review the Submission Packet.

   3. If the SHPO/THPO receives a comment or objection, in accordance with
   Section V.E, more than 25 but less than 31 days following its receipt of the
   initial submission, the SHPO/THPO shall have five calendar days to consider
   such comment or objection before the Section 106 process is complete or the
   matter may be submitted to the Commission.

   4.  If  the  SHPO/THPO determines the Applicant's Submission Packet is
   inadequate, or if the SHPO/THPO identifies additional Historic Properties
   within the APE, the SHPO/THPO will immediately notify the Applicant and
   describe  any  deficiencies.  The SHPO/THPO may close its file without
   prejudice if the Applicant does not resubmit an amended Submission Packet
   within 60 days following the Applicant's receipt of the returned Submission
   Packet. Resubmission of the Submission Packet to the SHPO/THPO commences a
   new 30 day period for review.

B. Determinations of No Historic Properties Affected

   1. If the SHPO/THPO concurs in writing with the Applicant's determination of
   no Historic Properties affected, it is deemed that no Historic Properties
   exist within the APE or the Undertaking will have no effect on any Historic
   Properties located within the APE. The Section 106 process is then complete,
   and the Applicant may proceed with the project, unless further processing
   for reasons other than Section 106 is required.

   2. If the SHPO/THPO does not provide written notice to the Applicant that it
   agrees  or disagrees with the Applicant's determination of no Historic
   Properties  affected  within  30  days following receipt of a complete
   Submission Packet, it is deemed that no Historic Properties exist within the
   APE or the Undertaking will have no effect on Historic Properties. The
   Section 106 process is then complete and the Applicant may proceed with the
   project, unless further processing for reasons other than Section 106 is
   required.

   3. If the SHPO/THPO provides written notice within 30 days following receipt
   of  the  Submission  Packet  that  it  disagrees  with the Applicant's
   determination of no Historic Properties affected, it should provide a short
   and concise explanation of exactly how the criteria of eligibility and/or
   criteria of Adverse Effect would apply. The Applicant and the SHPO/THPO
   should engage in further discussions and make a reasonable and good faith
   effort to resolve their disagreement.

   4. If the SHPO/THPO and Applicant do not resolve their disagreement, the
   Applicant may at any time choose to submit the matter, together with all
   relevant documents, to the Commission, advising the SHPO/THPO accordingly.

C. Determinations of No Adverse Effect

   1. If the SHPO/THPO concurs in writing with the Applicant's determination of
   no adverse effect, the Facility is deemed to have no adverse effect on
   Historic  Properties. The Section 106 process is then complete and the
   Applicant  may proceed with the project, unless further processing for
   reasons other than Section 106 is required.

   2. If the SHPO/THPO does not provide written notice to the Applicant that it
   agrees or disagrees with the Applicant's determination of no adverse effect
   within thirty days following its receipt of a complete Submission Packet,
   the  SHPO/THPO  is  presumed  to  have  concurred with the Applicant's
   determination. The Applicant shall, pursuant to procedures to be promulgated
   by  the  Commission,  forward  a  copy of its Submission Packet to the
   Commission, together with all correspondence with the SHPO/THPO and any
   comments or objections received from the public, and advise the SHPO/THPO
   accordingly. The Section 106 process shall then be complete unless the
   Commission  notifies  the Applicant otherwise within 15 days after the
   Commission  receives  the  Submission Packet and accompanying material
   electronically or 25 days after the Commission receives this material by
   other means.

   3. If the SHPO/THPO provides written notice within 30 days following receipt
   of  the  Submission  Packet  that  it  disagrees  with the Applicant's
   determination of no adverse effect, it should provide a short and concise
   explanation  of the Historic Properties it believes to be affected and
   exactly how the criteria of Adverse Effect would apply. The Applicant and
   the SHPO/THPO should engage in further discussions and make a reasonable and
   good faith effort to resolve their disagreement.

   4.  If  the  SHPO/THPO and Applicant do not resolve their dispute, the
   Applicant may at any time choose to submit the matter, together with all
   relevant documents, to the Commission, advising the SHPO/THPO accordingly.

   5.  Whenever the Applicant or the Commission concludes, or a SHPO/THPO
   advises, that a proposed project will have an adverse effect on a Historic
   Property, after applying the criteria of Adverse Effect, the Applicant and
   the SHPO/THPO are encouraged to investigate measures that would avoid the
   adverse effect and permit a conditional “No Adverse Effect” determination.

   6. If the Applicant and SHPO/THPO mutually agree upon conditions that will
   result in no adverse effect, the Applicant shall advise the SHPO/THPO in
   writing that it will comply with the conditions. The Applicant can then make
   a determination of no adverse effect subject to its implementation of the
   conditions. The Undertaking is then deemed conditionally to have no adverse
   effect  on Historic Properties, and the Applicant may proceed with the
   project subject to compliance with those conditions. Where the Commission
   has previously been involved in the matter, the Applicant shall notify the
   Commission of this resolution.

D. Determinations of Adverse Effect

   1.  If  the  Applicant  determines at any stage in the process that an
   Undertaking would have an adverse effect on Historic Properties within the
   APE(s), or if the Commission so finds, the Applicant shall submit to the
   SHPO/THPO  a plan designed to avoid, minimize, or mitigate the adverse
   effect.

   2. The Applicant shall forward a copy of its submission with its mitigation
   plan and the entire record to the Council and the Commission. Within fifteen
   days following receipt of the Applicant's submission, the Council shall
   indicate  whether  it  intends  to participate in the negotiation of a
   Memorandum of Agreement by notifying both the Applicant and the Commission.

   3. Where the Undertaking would have an adverse effect on a National Historic
   Landmark,  the  Commission shall request the Council to participate in
   consultation  and  shall  invite participation by the Secretary of the
   Interior.

   4.  The Applicant, SHPO/THPO, and consulting parties shall negotiate a
   Memorandum of Agreement that shall be sent to the Commission for review and
   execution.

   5. If the parties are unable to agree upon mitigation measures, they shall
   submit the matter to the Commission, which shall coordinate additional
   actions  in  accordance  with  the  Council's  rules, including 36 CFR
   800.6(b)(1)(v) and 800.7.

E. Retention of Information

   The  SHPO/THPO  shall,  subject to applicable state or tribal laws and
   regulations, and in accordance with its rules and procedures governing
   historic property records, retain the information in the Submission Packet
   pertaining to the location and National Register eligibility of Historic
   Properties and make such information available to Federal agencies and
   Applicants in other Section 106 reviews, where disclosure is not prevented
   by the confidentiality standards in 36 CFR 800.11(c).

F. Removal of Obsolete Towers

   Applicants that construct new Towers under the terms of this Nationwide
   Agreement adjacent to or within the boundaries of a Historic Property are
   encouraged to disassemble such Towers should they become obsolete or remain
   vacant for a year or more.

VIII. Emergency Situations

   Unless the Commission deems it necessary to issue an emergency authorization
   in accordance with its rules, or the Undertaking is otherwise excluded from
   Section 106 review pursuant to the Collocation Agreement or Section III of
   this Agreement, the procedures in this Agreement shall apply.

IX. Inadvertent or Post-Review Discoveries

   A. In the event that an Applicant discovers a previously unidentified site
   within the APE that may be a Historic Property that would be affected by an
   Undertaking,  the  Applicant shall promptly notify the Commission, the
   SHPO/THPO and any potentially affected Indian tribe or NHO, and within a
   reasonable  time shall submit to the Commission, the SHPO/THPO and any
   potentially affected Indian tribe or NHO, a written report evaluating the
   property's eligibility for inclusion in the National Register. The Applicant
   shall seek the input of any potentially affected Indian tribe or NHO in
   preparing this report. If found during construction, construction must cease
   until evaluation has been completed.

   B. If the Applicant and SHPO/THPO concur that the discovered resource is
   eligible for listing in the National Register, the Applicant will consult
   with the SHPO/THPO, and Indian tribes or NHOs as appropriate, to evaluate
   measures  that will avoid, minimize, or mitigate adverse effects. Upon
   agreement regarding such measures, the Applicant shall implement them and
   notify the Commission of its action.

   C. If the Applicant and SHPO/THPO cannot reach agreement regarding the
   eligibility of a property, the matter will be referred to the Commission for
   review in accordance with Section VI.D.3. If the Applicant and the SHPO/THPO
   cannot reach agreement on measures to avoid, minimize, or mitigate adverse
   effects, the matter shall be referred to the Commission for appropriate
   action.

   D.  If  the  Applicant  discovers  any  human or burial remains during
   implementation  of  an  Undertaking,  the  Applicant  shall cease work
   immediately, notify the SHPO/THPO and Commission, and adhere to applicable
   State and Federal laws regarding the treatment of human or burial remains.

X. Construction Prior to Compliance With Section 106

   A. The terms of Section 110(k) of the National Historic Preservation Act (16
   U.S.C. 470h-2(k)) (“Section 110(k)”) apply to Undertakings covered by this
   Agreement. Any SHPO/THPO, potentially affected Indian tribe or NHO, the
   Council, or a member of the public may submit a complaint to the Commission
   alleging that a facility has been constructed or partially constructed after
   the effective date of this Agreement in violation of Section 110(k). Any
   such complaint must be in writing and supported by substantial evidence
   specifically describing how Section 110(k) has been violated. Upon receipt
   of  such  complaint  the  Commission  will  assume  responsibility for
   investigating the applicability of Section 110(k) in accordance with the
   provisions herein.

   B. If upon its initial review, the Commission concludes that a complaint on
   its face demonstrates a probable violation of Section 110(k), the Commission
   will immediately notify and provide the relevant Applicant with copies of
   the Complaint and order that all construction of a new tower or installation
   of any new collocations immediately cease and remain suspended pending the
   Commission's resolution of the complaint.

   C. Within 15 days of receipt, the Commission will review the complaint and
   take appropriate action, which the Commission may determine, and which may
   include the following:

   1. Dismiss the complaint without further action if the complaint does not
   establish a probable violation of Section 110(k) even if the allegations are
   taken as true;

   2. Provide the Applicant with a copy of the complaint and request a written
   response within a reasonable time;

   3.  Request from the Applicant a background report which documents the
   history and chronology of the planning and construction of the Facility;

   4. Request from the Applicant a summary of the steps taken to comply with
   the requirements of Section 106 as set forth in this Nationwide Agreement,
   particularly the application of the Criteria of Adverse Effect;

   5. Request from the Applicant copies of any documents regarding the planning
   or construction of the Facility, including correspondence, memoranda, and
   agreements;

   6.  If  the Facility was constructed prior to full compliance with the
   requirements of Section 106, request from the Applicant an explanation for
   such  failure, and possible measures that can be taken to mitigate any
   resulting adverse effects on Historic Properties.

   D. If the Commission concludes that there is a probable violation of Section
   110(k) (i.e., that “with intent to avoid the requirements of Section 106,
   [an Applicant] has intentionally significantly adversely affected a Historic
   Property”), the Commission shall notify the Applicant and forward a copy of
   the  documentation  set  forth  in Section X.C. to the Council and, as
   appropriate, the SHPO/THPO and other consulting parties, along with the
   Commission's opinion regarding the probable violation of Section 110(k). The
   Commission will consider the views of the consulting parties in determining
   a resolution, which may include negotiating a Memorandum of Agreement (MOA)
   that will resolve any adverse effects. The Commission, SHPO/THPO, Council,
   and Applicant shall sign the MOA to evidence acceptance of the mitigation
   plan and conclusion of the Section 106 review process.

   E. Nothing in Section X or any other provision of this Agreement shall
   preclude  the  Commission  from  continuing or instituting enforcement
   proceedings under the Communications Act and its rules against an Applicant
   that has constructed a Facility prior to completing required review under
   this Agreement. Sanctions for violations of the Commission's rules may
   include  any  sanctions  allowed  under the Communications Act and the
   Commission's rules.

   F. The Commission shall provide copies of all concluding reports or orders
   for all Section 110(k) investigations conducted by the Commission to the
   original complainant, the Applicant, the relevant local government, and
   other consulting parties.

   G. Facilities that are excluded from Section 106 review pursuant to the
   Collocation Agreement or Section III of this Agreement are not subject to
   review under this provision. Any parties who allege that such Facilities
   have violated Section 110(k) should notify the Commission in accordance with
   the provisions of Section XI, Public Comments and Objections.

XI. Public Comments and Objections

   Any  member of the public may notify the Commission of concerns it has
   regarding the application of this Nationwide Agreement within a State or
   with regard to the review of individual Undertakings covered or excluded
   under the terms of this Agreement. Comments related to telecommunications
   activities shall be directed to the Wireless Telecommunications Bureau and
   those related to broadcast facilities to the Media Bureau. The Commission
   will consider public comments and following consultation with the SHPO/THPO,
   potentially affected Indian tribes and NHOs, or Council, where appropriate,
   take appropriate actions. The Commission shall notify the objector of the
   outcome of its actions.

XII. Amendments

   The  signatories may propose modifications or other amendments to this
   Nationwide Agreement. Any amendment to this Agreement shall be subject to
   appropriate public notice and comment and shall be signed by the Commission,
   the Council, and the Conference.

XIII. Termination

   A. Any signatory to this Nationwide Agreement may request termination by
   written  notice to the other parties. Within sixty (60) days following
   receipt of a written request for termination from a signatory, all other
   signatories shall discuss the basis for the termination request and seek
   agreement on amendments or other actions that would avoid termination.

   B. In the event that this Agreement is terminated, the Commission and all
   Applicants shall comply with the requirements of 36 CFR Part 800.

XIV. Annual Review

   The signatories to this Nationwide Agreement will meet annually on or about
   the  anniversary of the effective date of the Agreement 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.

XV. 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 NHPA or its
   implementing regulations contained in 36 CFR Part 800.

XVI. Severability

   If any section, subsection, paragraph, sentence, clause or phrase in this
   Agreement is, for any reason, held to be unconstitutional or invalid or
   ineffective, such decision shall not affect the validity or effectiveness of
   the remaining portions of this Agreement.

   In witness whereof, the Parties have caused this Agreement to be executed by
   their respective authorized officers as of the day and year first written
   above.

   Federal Communications Commission

   Chairman
    Date

   Advisory Council on Historic Preservation

   Chairman
    Date

   National Conference of State Historic Preservation Officers

    Date

   [ 70 FR 580 , Jan. 4, 2005]

   return arrow Back to Top
     _________________________________________________________________

   Need assistance?
   732 North Capitol Street, NW, Washington, DC 20401-0001     202.512.1800
   Privacy   |   Important Links   |   Accessibility   |   Sitemap   |   COOP


Goto Section: 1.30004 | 1.40001

Goto Year: 2014 | 2016
CiteFind - See documents on FCC website that cite this rule

Want to support this service?
Thanks!

Report errors in this rule. Since these rules are converted to HTML by machine, it's possible errors have been made. Please help us improve these rules by clicking the Report FCC Rule Errors link to report an error.
hallikainen.com
Helping make public information public