FCC streamlines preservation review

Dec 1, 2004 12:00 PM, By Harry Martin

The FCC has adopted measures to streamline the review process for communications towers under the National Historic Preservation Act. The Commission’s action adopts the provisions of a Nationwide Programmatic Agreement that, when approved by the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers, will be implemented by the FCC.

The Commission recognized that, as the number of tower constructions has dramatically increased since the late 1990s, it has a responsibility to manage the expansion of communications infrastructure in a way that best preserves our nation’s historical resources. Increased tower construction has also resulted in an exponential increase in the number of environmental and historic preservation reviews conducted by tower companies, state authorities and FCC staff, creating case backlogs, additional paperwork, and delays in the deployment of necessary wireless, public safety, broadcast and other communications infrastructure.

Key elements of the agreement include:

• Setting standards for identifying historic properties that may be affected by an undertaking and assessing effects on those properties, including a streamlined process for identifying eligible properties not listed on the National Register that may incur visual effects.
• Prescribing procedures including enforceable deadlines for state-level and Commission review.
• Providing forms designed to standardize filings made not only with the FCC but also with state historic preservation offices.
• Outlining procedures for communicating with federally recognized Indian tribes and native Hawaiian organizations to ensure protection of historic properties to such groups.
• Establishing exclusions from impact standards for enhancements to existing towers, replacement and temporary towers, certain towers constructed on industrial and commercial properties or in utility corridor rights-of-way, and construction in areas designated by state authorities.

The FCC is expected to have its new omnibus historic preservation review forms available by early 2005. The FCC’s staff is recommending that the new forms be completed and filed with state historic preservation offices even when a tower proposal may not be considered to have major impact. This would avoid problems caused if an applicant’s certification to the FCC of no impact turns out to be wrong.

Recent forfeitures

Broadcasting telephone calls. A Massachusetts DJ called a DJ from a competing station and pretended to be a listener. However, the calling DJ broadcast the entire conversation on his station without disclosing that � presumably to enhance the entertainment value for the station’s listeners. Needless to say, the president of the station that was the butt of the joke was not impressed. He sent a letter to the FCC to report the incident. Although the station, which was charged with the violation, claimed that it was an isolated incident and not authorized by management, the FCC noted that this was an easy instance of a willful act by an employee of the station and was in violation of the rules. The FCC fined the station $7,000.

Foreign Rebroadcasting Permit. A U.S. broadcast station must obtain a permit from the FCC if it transmits programming to a foreign station, which in turn rebroadcasts the programs to the United States. Most broadcasters that operate near the Canadian or Mexican borders are aware of this limitation. The FCC granted a company permission to broadcast San Diego Padres games to a station in Mexico that broadcast the games back into the United States. When the company first sought permission to do this, the Mexican station operated at 5kW. However, after the company obtained permission from the FCC to ship its programming to Mexico for rebroadcast, the Mexican station increased its power in apparent violation of international agreements � and that, in turn, caused the U.S. station’s international permit to become invalid. The FCC was not amused and fined the company $25,000.

Dateline:

Radio stations in Kansas, Nebraska and Oklahoma must file their renewal applications, biennial ownership reports and EEO program reports on or before Feb. 1, 2005.

Also on Feb. 1, 2005, radio stations in Texas must begin their pre-filing renewal announcements.

Martin is president of the Federal Communications Bar Association and a member of Fletcher, Heald & Hildreth, Arlington, VA. E-mail[email protected].