Goto Section: 1.30004 | 1.40001 | Table of Contents

FCC 1.40001
Revised as of December 7, 2018
Goto Year:2018 | 2020
  § 1.40001   Wireless Facility Modifications.

   Link to an amendment published at  83 FR 51886 , October 15, 2018.

   (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]

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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]

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

First Amendment to 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), the Advisory
   Council on Historic Preservation (the Council) and the National
   Conference of State Historic Preservation Officers (NCSHPO) executed
   this Nationwide Collocation Programmatic Agreement on March 16, 2001 in
   accordance with 36 CFR Section 800.14(b) to address the Section 106
   review process as it applies to the collocation of antennas; and,

   WHEREAS, the FCC encourages collocation of antennas where technically
   and economically feasible, in order to reduce the need for new tower
   construction; and in its Wireless Infrastructure Report and Order, WT
   Docket No. 13-238, et al, released October 21, 2014, adopted initial
   measures to update and tailor the manner in which it evaluates the
   impact of proposed deployments on the environment and historic
   properties and committed to expeditiously conclude a program
   alternative to implement additional improvements in the Section 106
   review process for small deployments that, because of their
   characteristics, are likely to have minimal and not adverse effects on
   historic properties; and,

   WHEREAS, the Middle Class Tax Relief and Job Creation Act of 2012
   (Title VI — Public Safety Communications and Electromagnetic Spectrum
   Auctions, Middle Class Tax Relief and Job Creation Act of 2012, Pub. L.
   112-96, 126 Stat. 156 (2012)) was adopted with the goal of advancing
   wireless broadband services, and the amended provisions in this
   Agreement further that goal; and,

   WHEREAS, advances in wireless technologies since 2001 have produced
   systems that use smaller antennas and compact radio equipment,
   including those used in Distributed Antenna Systems (DAS) and small
   cell systems, which are a fraction of the size of traditional cell
   tower deployments and can be installed on utility poles, buildings, and
   other existing structures as collocations; and,

   WHEREAS, the parties to this Collocation Agreement have taken into
   account new technologies involving use of small antennas that may often
   be collocated on utility poles, buildings, and other existing
   structures and increase the likelihood that such collocations will have
   minimal and not adverse effects on historic properties, and rapid
   deployment of such infrastructure may help meet the surging demand for
   wireless services, expand broadband access, support innovation and
   wireless opportunity, and enhance public safety—all to the benefit of
   consumers and the communities in which they live; and,

   WHEREAS, the FCC, the Council, and NCSHPO have agreed that these new
   measures should be incorporated into this Collocation Agreement to
   better manage the Section 106 consultation process and streamline
   reviews for collocation of antennas; and,

   WHEREAS, the FCC, the Council, and NCSHPO have crafted these new
   measures with the goal of promoting technological neutrality, with the
   goal of obviating the need for further amendments in the future as
   technologies evolve; and,

   WHEREAS, notwithstanding the intent to draft provisions in a manner
   that obviates the need for future amendments, in light of the public
   benefits associated with rapid deployment of the facilities required to
   provide broadband wireless services, the FCC, the Council, and NCSHPO
   have agreed that changes in technology and other factors relating to
   the placement and operation of wireless antennas and associated
   equipment may necessitate further amendments to this Collocation
   Agreement in the future; and,

   WHEREAS, the FCC, the Council, and NCSHPO have agreed that with respect
   to the amendments involving the use of small antennas, such amendments
   affect only the FCC's review process under Section 106 of the NHPA, and
   will not limit State and local governments' authority to enforce their
   own historic preservation requirements consistent with Section
   332(c)(7) of the Communications Act and Section 6409(a) of the Middle
   Class Tax Relief and Job Creation Act of 2012; and,

   WHEREAS, the FCC, the Council, and NCSHPO acknowledge that federally
   recognized Indian tribes (Indian tribes), Native Hawaiian Organizations
   (NHOs), SHPO/THPOs, local governments, and members of the public make
   important contributions to the Section 106 review process, in
   accordance with Section 800.2(c) & (d) of the Council's rules, and note
   that the procedures for appropriate public notification and
   participation in connection with the Section 106 process are set forth
   the Nationwide Programmatic Agreement Regarding the Section 106
   National Historic Preservation Act Review Process (NPA); and,

   WHEREAS, the parties hereto agree that the amended procedures described
   in this amendment to the Collocation 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 sought comment from Indian tribes and Native Hawaiian
   Organizations regarding the terms of this amendment to the Collocation
   Agreement by letters dated April 17, 2015, July 28, 2015, and May 12,
   2016, as well as during face-to-face meetings and conference calls,
   including during the Section 106 Summit in conjunction with the 2015
   annual conference of the National Association of Tribal Historic
   Preservation Officers (NATHPO); and,

   WHEREAS, the terms of this amendment to the Collocation 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 amendment to the Collocation Agreement do
   not preclude Indian tribes or NHOs 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 NHOs; and,

   WHEREAS, the execution and implementation of this amendment to the
   Collocation 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 Collocation Agreement;

   NOW THEREFORE, in accordance with Stipulation XI (as renumbered by this
   amendment), the FCC, the Council, and NCSHPO agree to amend the
   Collocation Agreement to read as follows:

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 (54
   U.S.C. 300101 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 Section
   800.14(b) to address the Section 106 review process as it applies to
   the collocation of antennas (collocation being defined in Stipulation
   I.B 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 (NHOs) 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 Indian tribes or
   NHOs, SHPO/THPOs, local governments, or 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, applicants
   for antenna licenses, and others deemed appropriate by the FCC, will
   ensure that the following measures are carried out.

I. DEFINITIONS

   For purposes of this Nationwide Programmatic Agreement, the following
   definitions apply.

   A. “Antenna” means an apparatus designed for the purpose of emitting
   radio frequency (“RF”) radiation, to be operated or operating from a
   fixed location pursuant to FCC 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
   purposes of this Agreement, the term Antenna does not include
   unintentional radiators, mobile stations, or devices authorized under
   Part 15 of the FCC's rules.

   B. “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,
   whether or not there is an existing antenna on the structure.

   C. “NPA” is the Nationwide Programmatic Agreement Regarding the Section
   106 National Historic Preservation Act Review Process (47 CFR part 1,
   App. C).

   D. “Tower” is any structure built for the sole or primary purpose of
   supporting FCC-licensed antennas and their associated facilities.

   E. “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 Stipulations I.A and I.B,
   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 through
   the Section 106 process set forth in the NPA, unless:

   1. The mounting of the antenna will result in a substantial increase in
   the size of the tower as defined in Stipulation I.E, above; or,

   2. The tower has been determined by the FCC to have an adverse effect
   on one or more historic properties, where such effect has not been
   avoided or mitigated through a conditional no adverse effect
   determination, a Memorandum of Agreement, a programmatic agreement, or
   a finding of compliance with Section 106 and the NPA; 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, an Indian Tribe, 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 through the
   Section 106 process set forth in the NPA, unless:

   1. The Section 106 review process for the existing tower set forth in
   36 CFR part 800 (including any applicable program alternative approved
   by the Council pursuant to 36 CFR 800.14) 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.E, above;
   or,

   3. The tower as built or proposed has been determined by the FCC to
   have an adverse effect on one or more historic properties, where such
   effect has not been avoided or mitigated through a conditional no
   adverse effect determination, a Memorandum of Agreement, a Programmatic
   Agreement, or otherwise in compliance with Section 106 and the NPA; 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, an Indian Tribe, 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

   A. An antenna may be mounted on a building or non-tower structure
   without such collocation being reviewed through the Section 106 process
   set forth in the NPA, unless:

   1. The building or structure is over 45 years old, and the collocation
   does not meet the criteria established in Stipulation VI herein for
   collocations of small antennas;1 or,

   1For purposes of this Agreement, suitable methods for determining the
   age of a building or structure include, but are not limited to: (1)
   Obtaining the opinion of a consultant who meets the Secretary of
   Interior's Professional Qualifications Standards for Historian or for
   Architectural Historian (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 a
   historic district, the building or structure is within 250 feet of the
   boundary of the historic district, and the collocation does not meet
   the criteria established in Stipulation VII herein for collocations of
   small or minimally visible antennas; 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 FCC, licensee,
   tower company or applicant for an antenna license, and the collocation
   does not meet the criteria established in Stipulation VII herein for
   collocations of small or minimally visible antennas; or,

   4. The collocation licensee or the owner of the building or non-tower
   structure has received written or electronic notification that the FCC
   is in receipt of a complaint from a member of the public, an Indian
   Tribe, 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. An antenna (including associated equipment included in the
   definition of Antenna in Stipulation I.A.) may be mounted in the
   interior of a building, regardless of the building's age or location in
   a historic district and regardless of the antenna's size, without such
   collocation being reviewed through the Section 106 process set forth in
   the NPA, unless:

   1) The building is a designated National Historic Landmark, or listed
   in or eligible for listing in the National Register of Historic Places;
   or,

   2) The collocation licensee or the owner of the building has received
   written or electronic notification that the FCC is in receipt of a
   complaint from a member of the public, an Indian Tribe, 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.

   C. 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 the NPA for this particular collocation.

VI. ADDITIONAL EXCLUSION FOR COLLOCATION OF SMALL WIRELESS ANTENNAS AND
ASSOCIATED EQUIPMENT ON BUILDING AND NON-TOWER STRUCTURES THAT ARE OUTSIDE OF
HISTORIC DISTRICTS AND ARE NOT HISTORIC PROPERTIES

   A. A small wireless antenna (including associated equipment included in
   the definition of Antenna in Stipulation I.A.) may be mounted on an
   existing building or non-tower structure or in the interior of a
   building regardless of the building's or structure's age without such
   collocation being reviewed through the Section 106 process set forth in
   the NPA unless:

   1. The building or structure is inside the boundary of a historic
   district, or if the antenna is visible from the ground level of a
   historic district, the building or structure is within 250 feet of the
   boundary of the historic district, and the collocation does not meet
   the criteria established in Stipulation VII herein for collocations of
   small or minimally visible antennas; or,

   2. The building or non-tower structure is a designated National
   Historic Landmark; or,

   3. The building or non-tower structure is listed in or eligible for
   listing in the National Register of Historic Places, and the
   collocation does not meet the criteria established in Stipulation VII
   herein for collocations of small or minimally visible antennas; or,

   4. The collocation licensee or the owner of the building or non-tower
   structure has received written or electronic notification that the FCC
   is in receipt of a complaint from a member of the public, an Indian
   Tribe, 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; or,

   5. The antennas and associated equipment exceed the volume limits
   specified below:

   a. Each individual antenna, excluding the associated equipment (as
   defined in the definition of Antenna in Stipulation I.A.), that is part
   of the collocation must fit within an enclosure (or if the antenna is
   exposed, within an imaginary enclosure, i.e., one that would be the
   correct size to contain the equipment) that is individually no more
   than three cubic feet in volume, and all antennas on the structure,
   including any pre-existing antennas on the structure, must in aggregate
   fit within enclosures (or if the antennas are exposed, within imaginary
   enclosures, i.e., ones that would be the correct size to contain the
   equipment) that total no more than six cubic feet in volume; and,

   b. All other wireless equipment associated with the structure,
   including pre-existing enclosures and including equipment on the ground
   associated with antennas on the structure, but excluding cable runs for
   the connection of power and other services, may not cumulatively
   exceed:

   i. 28 cubic feet for collocations on all non-pole structures (including
   but not limited to buildings and water tanks) that can support fewer
   than 3 providers; or,

   ii. 21 cubic feet for collocations on all pole structures (including
   but not limited to light poles, traffic signal poles, and utility
   poles) that can support fewer than 3 providers; or,

   iii. 35 cubic feet for non-pole collocations that can support at least
   3 providers; or,

   iv. 28 cubic feet for pole collocations that can support at least 3
   providers; or,

   6. The depth and width of any proposed ground disturbance associated
   with the collocation exceeds the depth and width of any previous ground
   disturbance (including footings and other anchoring mechanisms). Up to
   four lightning grounding rods of no more than three-quarters of an inch
   in diameter may be installed per project regardless of the extent of
   previous ground disturbance.

   B. The volume of any deployed equipment that is not visible from public
   spaces at the ground level from 250 feet or less may be omitted from
   the calculation of volumetric limits cited in this Section.

   C. 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 VI 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 the NPA for this particular collocation.

VII. ADDITIONAL EXCLUSIONS FOR COLLOCATION OF SMALL OR MINIMALLY VISIBLE
WIRELESS ANTENNAS AND ASSOCIATED EQUIPMENT IN HISTORIC DISTRICTS OR ON
HISTORIC PROPERTIES

   A. A small antenna (including associated equipment included in the
   definition of Antenna in Stipulation I.A.) may be mounted on a building
   or non-tower structure or in the interior of a building that is (1) a
   historic property (including a property listed in or eligible for
   listing in the National Register of Historic Places) or (2) inside or
   within 250 feet of the boundary of a historic district without being
   reviewed through the Section 106 process set forth in the NPA, provided
   that:

   1. The property on which the equipment will be deployed is not a
   designated National Historic Landmark.

   2. The antenna or antenna enclosure (including any existing antenna),
   excluding associated equipment, is the only equipment that is visible
   from the ground level, or from public spaces within the building (if
   the antenna is mounted in the interior of a building), and provided
   that the following conditions are met:

   a. No other antennas on the building or non-tower structure are visible
   from the ground level, or from public spaces within the building (for
   an antenna mounted in the interior of a building);

   b. The antenna that is part of the collocation fits within an enclosure
   (or if the antenna is exposed, within an imaginary enclosure i.e., one
   that would be the correct size to contain the equipment) that is no
   more than three cubic feet in volume; and,

   c. The antenna is installed using stealth techniques that match or
   complement the structure on which or within which it is deployed;

   3. The antenna's associated equipment is not visible from:

   a. The ground level anywhere in a historic district (if the antenna is
   located inside or within 250 feet of the boundary of a historic
   district); or,

   b. Immediately adjacent streets or public spaces at ground level (if
   the antenna is on a historic property that is not in a historic
   district); or,

   c. Public spaces within the building (if the antenna is mounted in the
   interior of a building).

   4. The facilities (including antenna(s) and associated equipment
   identified in the definition of Antenna in Stipulation I.A.) are
   installed in a way that does not damage historic materials and permits
   removal of such facilities without damaging historic materials;

   5. The depth and width of any proposed ground disturbance associated
   with the collocation does not exceed the depth and width of any
   previous ground disturbance (including footings and other anchoring
   mechanisms). Up to four lightning grounding rods of no more than
   three-quarters of an inch in diameter may be installed per project,
   regardless of the extent of previous ground disturbance; and

   6. The collocation licensee or the owner of the building or non-tower
   structure has not received written or electronic notification that the
   FCC is in receipt of a complaint from a member of the public, an Indian
   Tribe, 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. A small antenna (including associated equipment included in the
   definition of Antenna in Stipulation I.A.) may be mounted on a utility
   pole or electric transmission tower (but not including light poles,
   lamp posts, and other structures whose primary purpose is to provide
   public lighting) that is in active use by a utility company (as defined
   in Section 224 of the Communications Act) or by a cooperatively-owned,
   municipal, or other governmental agency and is either: (1) A historic
   property (including a property listed in or eligible for listing in the
   National Register of Historic Places); (2) located on a historic
   property (including a property listed in or eligible for listing in the
   National Register of Historic Places); or (3) located inside or within
   250 feet of the boundary of a historic district, without being reviewed
   through the Section 106 process set forth in the NPA, provided that:

   1. The utility pole or electric transmission tower on which the
   equipment will be deployed is not located on a designated National
   Historic Landmark;

   2. The antenna, excluding the associated equipment, fits within an
   enclosure (or if the antenna is exposed, within an imaginary enclosure,
   i.e., one that would be the correct size to contain the equipment) that
   is no more than three cubic feet in volume, with a cumulative limit of
   6 cubic feet if there is more than one antenna/antenna enclosure on the
   structure;

   3. The wireless equipment associated with the antenna and any
   pre-existing antennas and associated equipment on the structure, but
   excluding cable runs for the connection of power and other services,
   are cumulatively no more than 21 cubic feet in volume;

   4. The depth and width of any proposed ground disturbance associated
   with the collocation does not exceed the depth and width of any
   previous ground disturbance (including footings and other anchoring
   mechanisms). Up to four lightning grounding rods of no more than
   three-quarters of an inch in diameter may be installed per project,
   regardless of the extent of previous ground disturbance; and

   5. The collocation licensee or the owner of the utility pole or
   electric transmission tower has not received written or electronic
   notification that the FCC is in receipt of a complaint from a member of
   the public, an Indian Tribe, 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.

   C. Proposals to mount a small antenna on a traffic control structure
   (i.e., traffic light) or on a light pole, lamp post or other structure
   whose primary purpose is to provide public lighting, where the
   structure is located inside or within 250 feet of the boundary of a
   historic district, are generally subject to review through the Section
   106 process set forth in the NPA. These proposed collocations will be
   excluded from such review on a case-by-case basis, if (1) the
   collocation licensee or the owner of the structure has not received
   written or electronic notification that the FCC is in receipt of a
   complaint from a member of the public, an Indian Tribe, a SHPO or the
   Council, that the collocation has an adverse effect on one or more
   historic properties; and (2) the structure is not historic (not a
   designated National Historic Landmark or a property listed in or
   eligible for listing in the National Register of Historic Places) or
   considered a contributing or compatible element within the historic
   district, under the following procedures:

   1. The applicant must request in writing that the SHPO concur with the
   applicant's determination that the structure is not a contributing or
   compatible element within the historic district.

   2. The applicant's written request must specify the traffic control
   structure, light pole, or lamp post on which the applicant proposes to
   collocate and explain why the structure is not a contributing element
   based on the age and type of structure, as well as other relevant
   factors.

   3. The SHPO has thirty days from its receipt of such written notice to
   inform the applicant whether it disagrees with the applicant's
   determination that the structure is not a contributing or compatible
   element within the historic district.

   4. If within the thirty-day period, the SHPO informs the applicant that
   the structure is a contributing element or compatible element within
   the historic district or that the applicant has not provided sufficient
   information for a determination, the applicant may not deploy its
   facilities on that structure without completing the Section 106 review
   process.

   5. If, within the thirty day period, the SHPO either informs the
   applicant that the structure is not a contributing or compatible
   element within the historic district, or the SHPO fails to respond to
   the applicant within the thirty-day period, the applicant has no
   further Section 106 review obligations, provided that the collocation
   meets the following requirements:

   a. The antenna, excluding the associated equipment, fits within an
   enclosure (or if the antenna is exposed, within an imaginary enclosure,
   i.e., one that would be the correct size to contain the equipment) that
   is no more than three cubic feet in volume, with a cumulative limit of
   6 cubic feet if there is more than one antenna/antenna enclosure on the
   structure;

   b. The wireless equipment associated with the antenna and any
   pre-existing antennas and associated equipment on the structure, but
   excluding cable runs for the connection of power and other services,
   are cumulatively no more than 21 cubic feet in volume; and,

   c. The depth and width of any proposed ground disturbance associated
   with the collocation does not exceed the depth and width of any
   previous ground disturbance (including footings and other anchoring
   mechanisms). Up to four lightning grounding rods of no more than
   three-quarters of an inch in diameter may be installed per project,
   regardless of the extent of previous ground disturbance.

   D. A small antenna mounted inside a building or non-tower structure and
   subject to the provisions of this Stipulation VII is to be installed in
   a way that does not damage historic materials and permits removal of
   such facilities without damaging historic materials.

   E. 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 VII 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 the NPA for this particular collocation.

VIII. REPLACEMENTS ON SMALL WIRELESS ANTENNAS AND ASSOCIATED EQUIPMENT

   A. An existing small antenna that is mounted on a building or non-tower
   structure or in the interior of a building that is (1) a historic
   property (including a designated National Historic Landmark or a
   property listed in or eligible for listing in the National Register of
   Historic Places); (2) inside or within 250 feet of the boundary of a
   historic district; or (3) located on or inside a building or non-tower
   structure that is over 45 years of age, regardless of visibility, may
   be replaced without being reviewed through the Section 106 process set
   forth in the NPA, provided that:

   1. The antenna deployment being replaced has undergone Section 106
   review, unless either (a) such review was not required at the time that
   the antenna being replaced was installed, or (b) for deployments on
   towers, review is not required pursuant to Stipulation III above.

   2. The facility is a replacement for an existing facility, and it does
   not exceed the greater of:

   a. The size of the existing antenna/antenna enclosure and associated
   equipment that is being replaced; or,

   b. The following limits for the antenna and its associated equipment:

   i. The antenna, excluding the associated equipment, fits within an
   enclosure (or if the antenna is exposed, within an imaginary enclosure,
   i.e., one that would be the correct size to contain the equipment) that
   is no more than three cubic feet in volume, with a cumulative limit of
   6 cubic feet if there is more than one antenna/antenna enclosure on the
   structure; and,

   ii. The wireless equipment associated with the antenna and any
   pre-existing antennas and associated equipment on the structure, but
   excluding cable runs for the connection of power and other services,
   are cumulatively no more than 21 cubic feet in volume; and,

   3. The replacement of the facilities (including antenna(s) and
   associated equipment as defined in Stipulation I.A.) does not damage
   historic materials and permits removal of such facilities without
   damaging historic materials; and,

   4. The depth and width of any proposed ground disturbance associated
   with the collocation does not exceed the depth and width of any
   previous ground disturbance (including footings and other anchoring
   mechanisms). Up to four lightning grounding rods of no more than
   three-quarters of an inch in diameter may be installed per project,
   regardless of the extent of previous ground disturbance.

   B. A small antenna mounted inside a building or non-tower structure and
   subject to the provisions of this Stipulation VIII is to be installed
   in a way that does not damage historic materials and permits removal of
   such facilities without damaging historic materials.

IX. 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 (54 U.S.C. 300101
   et seq.) or its implementing regulations contained in 36 CFR part 800.

X. 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.

   C. Any member of the public may notify the FCC of concerns it has
   regarding the application of this Programmatic Agreement within a State
   or with regard to the review of individual undertakings covered or
   excluded under the terms of this Agreement. Comments shall be directed
   to the FCC's Federal Preservation Officer. The FCC will consider public
   comments and, following consultation with the SHPO, potentially
   affected Tribes, or the Council, as appropriate, take appropriate
   actions. The FCC shall notify the objector of the outcome of its
   actions.

XI. 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.

XII. TERMINATION

   A. If the FCC determines, or if NCSHPO determines on behalf of its
   members, that it or they 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 or that the spirit of Section 106 is not being met
   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 either are involved in such
   implementation or 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 owner and management 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.

XIII. ANNUAL MEETING OF THE SIGNATORIES

   The signatories to this Nationwide Collocation Programmatic Agreement
   will meet annually on or about the anniversary of the effective date of
   the NPA to discuss the effectiveness of this Agreement and the NPA,
   including any issues related to improper implementation, and to discuss
   any potential amendments that would improve the effectiveness of this
   Agreement.

XIV. 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, constitutes 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:

   NATIONAL CONFERENCE OF STATE HISTORIC PRESERVATION OFFICERS
     __________________________________________________________________

   Date:

   ADVISORY COUNCIL ON HISTORIC PRESERVATION
     __________________________________________________________________

   Date:

   [ 81 FR 59148 , Aug. 29, 2016]

   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]

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