The FCC has proposed to exclude so-called “Twilight Towers” from routine historic preservation review under Section 106 of the National Historic Preservation Act (“NHPA”) and its regulations.  Twilight Towers are towers that were built between March 16, 2001 and March 7, 2005 (“Twilight Period”) that either did not complete Section 106 review or have no documentation of Section 106 review.  The Commission inadvertently created the Twilight Period by adopting an exemption from historical review for towers built before 2001 and requiring historical review for towers built after 2005, but failing to clarify the Commission’s historical review rules and procedures for the Twilight Period.  Section 106 requires a federal agency to engage in a consultation process, which involves identification of a project’s adverse effects on historic and cultural properties and engagement with various interested parties, such as state or tribal historic preservation officers, the project sponsor, and other interested stakeholders, to address such effects.  The Advisory Council on Historic Preservation (“ACHP”), a federal entity charged with overseeing the implementation of the NHPA, may also become involved, typically if there is disagreement amongst the parties.

The FCC said its action “constitutes another step towards promoting the deployment of wireless infrastructure.”  According to industry groups, there are more than 4,000 Twilight Towers, including towers located in rural areas where providers depend on infrastructure sharing to reduce deployment costs.  Under existing regulations, wireless licensees cannot collocate on Twilight Towers unless each collocation completes Section 106 review or the underlying tower goes through an individual post-construction review process.  These reviews add significant time, cost, and complication to wireless deployments, and have dis-incentivized licensees from collocating on Twilight Towers and eliminating these towers as sources of improved wireless coverage for over a decade.

To address the “unusual set of factors surrounding the use of these Twilight Towers,” the FCC drafted a Program Comment that proposes reforms to the historic preservation review requirements for collocations.  The FCC’s current rules generally require licensees and applicants to follow the ACHP’s rules or an applicable “program alternative” to determine whether a proposed action may affect historic properties.  A Program Comment is a “program alternative,” which provides streamlined review procedures for defined programs or activities that have minimal potential to adversely affect historic properties.

The FCC seeks comment on the draft Program Comment from all affected stakeholders.  The FCC noted the draft is informed by the Wireless Infrastructure Reform proceeding and years of engagement with tribal nations, historical organizations, and industry stakeholders.

The draft Program Comment generally excludes collocations on Twilight Towers from Section 106 review and clarifies ambiguities in earlier versions of the Commission’s rules and the 2001 Collocation National Programmatic Agreement (“Collocation NPA”).  The Collocation NPA exempted towers built during the Twilight Period from Section 106 review only if the underlying tower had already undergone such review, even though it was unclear whether Section 106 review was even required at that time.  Indeed, the Commission’s rules at the time did not mandate consultation with SHPOs or THPOs, and standards for consultation with Tribes on non-Tribal lands were not clearly defined.  The 2005 National Programmatic Agreement clarified that Section 106 review was mandatory for towers built after the Twilight Period, but the historical review regime for Twilight Towers remained muddled.

The FCC said its proposed exclusion is warranted based on the lack of specificity regarding the Section 106 review process in the FCC’s rules and the lack of reliable Section 106 review documentation during the Twilight Period, the limited likelihood that Section 106 review would now identify an undiscovered adverse effect given the passage of time since tower construction, and the significant public interest in making the towers available for collocation.  The FCC said its draft exclusion is intended to mirror the exclusion in the Collocation NPA and is consistent with its directive to encourage collocation.  The Program Comment also clarifies that in order to avoid duplicative review other federal agencies do not have to review the effects of collocations on Twilight Towers.  The FCC also announced it will not take enforcement action against Twilight Towers deployed in “good faith.”

However, the FCC determined that certain types of collocations, towers, licensees, and tower owners are ineligible for the Section 106 exclusion and must undergo historic preservation review, as further outlined below.  Additionally, the draft Program Comment does not apply on tribal lands unless the affected tribal nation has provided the FCC with a written notice agreeing to its application on tribal lands.  The draft also allows tribal nations to request direct government-to-government consultation with the FCC at any time with respect to a Twilight Tower or collocation, which the FCC will treat as a complaint against the proposed collocation and notify the tower owner.

Collocations with any of the following features are not eligible for the Section 106 exclusion:

• Increase the existing height of the tower by more than 10% or by the height of one additional antenna array with separation from the existing antenna not to exceed 20 feet, whichever is greater (unless the increased height is necessary to avoid interference with existing antennas, in which case the collocation is eligible for the Section 106 exclusion);
• Involve 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;
• Involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet or more than the width of the tower structure at the level of the appurtenance, whichever is greater (unless the mounting is necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable, in which case the collocation is eligible for the Section 106 exclusion); or
• Involve excavation outside the current tower site boundaries.

Certain towers, licensees, and tower owners are also ineligible for the Section 106 exclusion as follows:

• Towers that the FCC has determined have an adverse effect on one or more historic properties, where the effect has not been avoided or mitigated;
• Towers subject to a pending FCC proceeding involving compliance with Section 106; or
• Collocation licensees or tower owners that have been notified that the FCC has received a complaint from a tribal nation, ACHP, or a historic organization that the collocation has an adverse effect on one or more historic properties.

Public comments on the draft Program Comment are due February 9, 2018; replies from the public in response to initial comments are due February 26, 2018.