FCC OK’s reopening of seemingly closed historic review process … eight years after the question is raised.

Getting governmental approval to build a tower can take a long time. As a recent FCC decision demonstrates, it can take a lot longer when the government can’t decide when the approval process has come to an end.

If you wanted to build a radio tower at any time in the last decade, you presumably ran into the “Nationwide Programmatic Agreement” (NPA). That’s an agreement – official full name: “the Nationwide Programmatic Agreement for the Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission” – entered into by the Commission, the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers. (A copy of the NPA may be found here; related information may be found here.) As its name suggests, the NPA was adopted to avoid construction that would cause unacceptable disruption to historical or cultural interests.

The approval process imposed by the NPA is complicated for towers that come within its reach. Among other things, the NPA requires applicants to give the relevant State Historic Preservation Officer (SHPO) notice of the project. That notice must include (among other things): (a) a list of properties near the proposed tower site that are listed on (or eligible for listing on) the National Register; and (b) an evaluation of whether the proposed construction would adversely affect any such properties. If the SHPO “concurs in writing” that no historic properties would be affected, then, according to Section VII of the NPA, the process is “complete, and the Applicant may proceed with the project”.

That may look clear. Looks can be deceiving.

Back in 2006, Wireless Properties, Inc. (WPI) started the process to obtain approval for a new tower in Tennessee. Things went smoothly at first: WPI submitted the necessary paperwork (i.e., a completed FCC Form 620) to the Tennessee SHPO and, by March, 2006, the SHPO had concurred in writing that the proposal would not be a problem. WPI’s paperwork included a letter from a local historic expert who concluded that the tower would not have any adverse effect.

But nine months later, that expert notified the SHPO that there was a problem. The proposed site was near the Bragg Reservation, which is part of a national park near Chattanooga; the proposed construction would, in the expert’s view, adversely affect the Reservation (and a second National Register-listed site). Apparently, the expert hadn’t flagged this problem earlier because WPI hadn’t mentioned the Reservation in the materials it had submitted. (The expert also attributed his failure to his own “lack of familiarity with the area and inexperience in the job”.)

In light of this development, in December, 2006, the Tennessee SHPO rescinded its March, 2006 finding of no adverse effect, re-opened the matter, and concluded that the proposed tower would adversely affect the area.

WPI then sought an expedited ruling from the folks in the Wireless Telecommunications Bureau that the SHPO could not rescind a determination. WPI argued that, once the SHPO had concurred in writing (in March, 2006) that the tower would have no adverse effect, the review process was complete under Section VII of the NPA and the SHPO had no authority under the NPA to re-open that determination.

In response the Bureau did act expeditiously – by denying the requested ruling and, instead, re-opening its own review process to consider the effects of the proposed tower on the Bragg Reservation. In June, 2007, WPI asked the full Commission to review that ruling.

And there things sat for eight years.

Why did it take the Commission so long to resolve an ostensibly simple case? It may be the Commission’s seeming lack of interest in reviewing adjudicatory actions by its delegated authorities. Such actions, which may be of vital importance to the parties but of little (if any) importance to the public at large, tend to capture the Commissioners’ attention only seldom. So they just sit there. Alternatively, the delay may have arisen because the case presented a not-so-simple issue of deciding when the historic review process is “final.”

FCC actions – like most administrative actions – become final when they are no longer subject to reconsideration or review by the agency or the courts. This “finality” concept is important for the applicants themselves, who want to know for sure that they can safely proceed with the time, effort and expense of construction. But it’s also important both for lenders, who want to know that administrative actions are permanent and can’t be changed, and for courts, who will not review an agency action until the action has achieved some measure of finality at the agency level. And more fundamentally, it’s important for everyone involved to be sure that something has been “decided” one way or another so they can move on with their lives.

Here there is no question that WPI failed to list an important potentially affected historic site in the materials it submitted to the SHPO, so when the SHPO made its decision, it did not have the full picture to consider. But WPI argued that it had described its project to the SHPO and that, with the SHPO’s March, 2006 written concurrence, the historic review process was “complete” under the terms of the NPA. Recall that Section VII of the NPA provides in relevant part that, “[i]f the SHPO] 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 ….” “Complete” means “complete,” WPI argued, despite the fact that it had omitted a key fact in what it had told the SHPO.

The FCC was not convinced. It repeatedly pointed to another section of the NPA which provides:

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…. 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 held that this vague and broad language authorized it to “take appropriate actions” before, during, or after the review process upon the receipt of “public comment”. That, in turn, gave the Commission – and, thus, the Bureau, but not the Tennessee SHPO – the authority to re-open the review process here.

To be sure, the FCC emphasized that a SHPO’s written determination will be invalidated only by “a material error or omission [in the tower proponent’s submissions] that precludes effective review of the potential effects of the proposed tower on historic properties”. While the Commission’s decision is understandable – applicants should not be rewarded for sneaking through the review process by providing wrong or incomplete information – it does impair another important interest for both regulators and regulates alike: the need to bring matters to a final close.

We should note that the FCC’s own procedures in other contexts deal with this kind of situation in a way that could have worked well here. If the FCC grants a license and that grant becomes “final” under the rules, the FCC cannot re-open or disturb the original grant. What it can do if circumstances come to its attention that would have caused the original application not to have been granted in the first place is to open a revocation proceeding in which the applicant is given the opportunity to show cause why the license should not be revoked. In other words, a new proceeding is opened to consider the effect of the misinformation. This preserves the principle of finality but allows the agency to address grants that were clearly erroneous. No such mechanism is available under the historic review process. So as is so often the case, we end up with a decision that does rough justice but opens the procedural door to endless litigation in the future.