On Dec.14, the FCC released a Public Notice unveiling a draft Program Comment that will supposedly resolve the longstanding issues surrounding collocating equipment on so-called “Twilight Towers.”

Twilight Towers have been stuck in limbo as a result of an ambiguity in the Commission’s rules. Since 2001, the Commission has had rules in place that require licensees to evaluate whether proposed facilities would affect historic properties. However, those rules were not specifically tied to Section 106 of the National Historic Preservation Act, which governs the historic preservation review process, until 2005.

As a result of this ambiguity, Twilight Towers either lack documentation demonstrating successful completion of Section 106 review upon construction or have not undergone Section 106 review at all. Tower collocations are exempt from an individual historic review process only if the underlying tower itself underwent Section 106 review. Thus, Twilight Towers have been unable to take advantage of this historic review exemption for collocations. The FCC is also eager to make more towers available for broadband deployment, one of the larger items on Chairman Pai’s agenda.

According to the FCC, routine historic preservation review for Twilight Towers would be inept. It claims that no adverse effects have been brought to its attention in the towers’ 12 to 16 years of existence, and thus routine historic preservation review would be of little value.

While industry had urged the FCC to exempt Twilight Towers from any historic preservation review, other commenters, such as the Tribal Nations and State Historic Preservation Officers, argued that collocations may increase the adverse effects of towers and urged the FCC to implement some sort of review process. While the FCC was unwilling to provide a blanket exemption to historic preservation review, it did meet industry halfway by making clear it would not take enforcement action relating to the good faith construction and deployment of Twilight Towers, and by providing an alternative path to Section 106 exemption.

The Public Notice provided a draft of this alternative path in the form of a Program Comment. After receiving comments on the Program Comment, the FCC will revise it as appropriate and summarize the comments for the Advisory Council on Historic Preservation. The ACHP will then decide whether to issue the Program Comment within 45 days.

Under the Program Comment, collocation on Twilight Towers will be permitted without historic preservation review unless any of the following is true:

  • The proposed antenna increases the existing height of the tower by more than 10 percent or the height of another antenna array within 20 feet, whichever is greater.
  • The proposed antenna involves the installation more than four new equipment cabinets or more than one new equipment shelter.
  • The proposed antenna will 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.
  • Mounting the proposed antenna will 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.
  • The tower has been determined by the FCC to have an adverse effect on one or more historic properties.
  • The tower is the subject of a pending environmental review or related proceeding before the FCC involving compliance with Section 106 of the NHPA.
  • The collocation licensee or the owner of the tower has received notice that the FCC is in receipt of a complaint that the collocation has an adverse effect on one or more historic properties. Any such complaint must be in writing and supported by substantial evidence describing how the effect from the collocation is adverse to the attributes that qualify any affected historic property for eligibility or potential eligibility for the National Register.

Comments will be set by the Federal Register and may be filed under WT Docket No. 17-79. The Commission says it will “welcome additional meetings” with industry and other interested groups during this comment period.