Dan,
A Programmatic Agreement at this time would be detrimental to our nation's
cultural landscapes and to certain types of historic properties, notably
transportation resources, industrial sites, and recent past resources. While
participating in the Telecommunications Working Group, I offered these
comments to the FCC based on an earlier draft of the PA released yesterday
for public comment:
==============================
18 December 2002
Jeffrey Steinberg, Deputy Bureau Chief
Wireless Telecommunications Bureau
Federal Communications Commission
445 12th Street SW
Washington, DC 20554
RE: Comments on the proposed Nationwide Programmatic Agreement for FCC
undertakings
Dear Mr. Steinberg,
I am writing to provide the Federal Communications Commission and the
members of the Telecommunications Working Group with comments on the draft
Nationwide Programmatic Agreement For Review Of Effects On Historic
Properties For Undertakings Approved By The Federal Communications
Commission issued 6 December 2002 and discussed at the Telecommunications
Working Group meeting 10 December 2002. The Commission, Advisory Council on
Historic Preservation, National Conference of State Historic Preservation
Officers, and representatives from the communications industry and historic
preservation concerns have taken great strides since the summer of 2000 by
engaging in a meaningful dialogue on the Commission's obligations to comply
with the National Historic Preservation Act. As a result of the
Telecommunications Working Group's efforts, the Commission and the
communications industry have a greater understanding of the Act and the
often perplexing paths leading to compliance with Section 106. Professionals
in historic preservation - State Historic Preservation Office staffs,
preservationists, and consultants - also have a greater understanding of the
needs of the communications industry and its business practices. Towards
achieving this dialogue, the Commission and the members of the
Telecommunications Working Group should be commended.
Last year, one product of the Telecommunications Working Group - the
Nationwide Programmatic Agreement For The Collocation Of Wireless Antennas -
was executed to presumably "streamline" the Section 106 compliance process
for classes of FCC undertakings that routinely do not affect historic
properties. Although the Collocation PA has contributed to a reduction in
consultation efforts between FCC regulated parties and SHPOs, there remains
widespread misunderstandings about the scope and applicability of the PA.
Furthermore, the PA was drafted and executed without consideration being
given to the possibility that existing communications facilities (e.g.,
towers) may be historic and eligible for listing in the National Register of
Historic Places. The former relay stations in the former Western Union
Telegraph Company New York-Washington-Pittsburgh Radio Relay Triangle and
the historic Tenley Site in Washington, DC, comprise one multiple-property
example of such a historic property. Another is the nation's first FM radio
transmission tower constructed in 1938 by radio pioneer Edwin H. Armstrong
in Alpine, New Jersey.
Communications facilities are a significant part of American industrial and
social history. The first aerials to carry wireless signals began appearing
at the turn of the twentieth century. By 1927, the proliferation of
broadcasting stations had become so great that the U.S. Congress sought to
more tightly regulate them by passage of the Radio Act of 1927. A decade
later, the new FCC in concert with the U.S. Department of Commerce, began a
program of standardizing tower lighting and painting to reduce the hazards
to another nascent industry: aviation. By 1940, there were more than 1,000
communications towers in the United States, with heights from 150 feet to
900 feet. Some of the towers standing in 1940 remain in service today.
The December 2002 PA draft does nothing to remedy gaps in the Collocation
PA. The Commission (and its regulated parties) must make an effort to ensure
that federal undertakings do not adversely affect the significant properties
that contribute to the history of the communications industry. Any new
programmatic agreement for FCC undertakings should take into account the
fact that radio broadcast, radar, microwave, and television facilities may
be historic properties subject to consideration in the Section 106 process.
In deliberating the definition of areas of potential effects (APEs) for FCC
undertaking, much effort was expended by members of the communications
industry and representatives from SHPO staffs and the cultural resource
management industry to arrive at a consensus on what is an appropriate
"minimum APE" for FCC undertakings with regard to potential visual impacts.
The Commission's draft discusses "Determination of Visual Effects on
Historic Properties" (VI(B)) and proposes fixed APEs based on tower heights.
I think that this approach has no defensible basis and would strongly urge
the consultation with landscape architects and cultural landscape experts.
As a consultant working in Section 106 compliance for FCC projects, I
regularly delimit APEs. Most are fairly limited, extending approximately
2,000-2,500 feet from proposed facilities. There are some APEs, however,
that because of topography, land use, and the types of historic properties,
that include areas up to and including one mile away from proposed
facilities. By setting minimum distances, the PA will create arbitrary APEs
with no basis in reality forcing some project proponents to do more survey
work than necessary and needlessly excluding areas with historic properties
that have cultural landscape components (views) that are integral to
National Register of Historic Places significance.
The standard in the cultural resource management industry is such that there
is little incentive for consultants to use qualified professionals (e.g.,
landscape architects or cultural geographers) to delimit APEs in Section 106
projects. These professionals are better trained to recognize potential
visual impact problems than archaeologists and many architectural
historians. Furthermore, it is unrealistic to expect that the communications
industry will be willing to bear the costs of paying outside consultants to
conduct these studies. There needs to be a more reasoned dialogue on what
constitutes an APE for potential visual impacts introduced by communications
facilities. At the 10 December 2002 Telecommunications Working Group
meeting, cultural resource management industry representative Jo Reese
rhetorically asked, "Why are we taking pictures of all these buildings?"
That is a legitimate question because in my experience working on
FCC-regulated projects, few (including SHPO staff, cultural resource
management professionals, and members of industry) can provide a
comprehensible answer. The current model in Section 106 studies of drawing a
point in a USGS map and drawing a circle around that point to delimit an APE
and then sending out someone to take pictures of every building fifty years
old or older does not satisfy the Advisory Council's rules describing
documentation.
Simply taking pictures from historic properties back towards a proposed
communications facility is a descriptive exercise - there generally are no
attempts to analyze why a tower's visibility from that point constitutes an
effect or an adverse effect. Furthermore, the photographs themselves are of
little real value because of the types of camera and lenses used to create
the photographic inventory of historic properties and their surrounding
landscapes. The cameras and lenses used in visual impact analyses should
best match the physiological characteristics of the human eye, i.e., 35mm
color film and a 50mm lens (with an effective angle of view of 45 degrees).
Without a defensible understanding (and the means of collecting data to
support it) of the potential impacts of communications facilities, it would
be premature to arbitrarily limit (or expand) APEs for visual impacts.
For all the discussions of types of effects and likely APEs for FCC
projects, there remains much ambiguity on the actual effects of towers to
historic properties. Some effects are clear even to laypersons and
professional alike. The adverse visual effects of the partially built
Fordham University (WFUV) broadcast tower on The New York Botanical Garden
National Historic Landmark leave little room for argument. This structure,
both day and night, meets the standard of an adverse effect as described in
the Advisory Council on Historic Preservation's rule. But what about the
tower located more than half a mile away from a historic farmhouse that was
built on a hill facing a particular direction because of the aesthetic
sensibilities of the farm's builder and vernacular architectural conventions
that call for farms to be built on a certain axis? Built in 1840 on a
Piedmont hill connected to the state road by an unsurfaced road, this farm
overlooks more than thirty square miles of farms and forest. In 1999, a
communications company proposed to construct a 199-foot tower nearly a mile
away that will break the horizon above the treeline visible from the front
porch of this National Register eligible property? Logically built according
to cultural and personal conventions, with its integrity (setting, feeling)
uncompromised by development or loss, the effects to this historic property
would be commensurate to those introduced by the Fordham tower to The New
York Botanical Garden.
Before executing any National Historic Preservation Act program alternative,
the FCC should engage in a technical study conducted by qualified
professionals to first define what constitutes an effect to historic
properties by communications facilities. Any policy aimed at "streamlining"
the Section 106 process before the Commission knows what is being affected
and how would be fraught with vulnerabilities that most certainly would
create additional hardships for the Commission and for members of the
communications industry.
The Commission has made great strides in bringing itself into compliance
with the National Historic Preservation Act. Hiring Amos Loveday as its
first preservation officer was a necessary first step. The Commission should
now implement a policy for itself and its regulated parties that makes a
good faith effort to deploy the current Advisory Council on Historic
Preservation's rules. It should then assess which parts of the rules work
and which do not prior to enacting any Section 106 program alternative. It
is imperative that the Commission develops a coherent and workable policy
for compliance with Section 106 that can be effectively communicated to the
communications industry. A uniform understanding of what is required under
Section 106 is key to eliminating much of the costly and time consuming
roadblocks many in the communications industry face each time Section 106
consultation is initiated.
It is incumbent on the FCC to work with State Historic Preservation Officers
to educate them and their staffs on the scale and scope of FCC undertakings.
Many SHPO staffs have for one reason or another failed to act in accordance
with the letter and the spirit of the National Historic Preservation Act.
The Commission's reluctance to enact a Section 106 policy that is separate
and distinct from its National Environmental Policy Act program has placed
undue authority in the hands of SHPO staff. It is not reasonable to expect
that private enterprise should continue to be damaged by the Commission's
laissez-faire compliance policy simply because some SHPO staff do not
understand the types of potential impacts introduced by communications
facilities. In Pennsylvania, for example, the SHPO found a proposed personal
wireless services facility would adversely affect two historic properties:
one, a refractory brick manufacturing plant, was demolished ten years
earlier and documented by the Historic American Engineering Record with the
Pennsylvania SHPO's assistance; a second one was a historic district with
its significance tied to the destroyed brickworks. The proposed facility was
to be located outside the boundaries of the existing historic district, one
the side of a mountain once used as a sandstone quarry by the brickworks.
During the brickworks' and historic district's period of significance, the
mountainside and proposed wireless facility site was a denuded industrial
landscape. Nothing about the mountainside in 2000 reflected its appearance
during the historic district's period of significance. Despite information
provided to the SHPO demonstrating this, the SHPO still found the proposed
facility would adversely affect the historic district. Because the
Commission defers to the opinion of SHPOs in consultation, the project
proponent spent a considerable amount of time and money in circular
negotiations with the Pennsylvania SHPO.
Throughout the country, SHPO staffs are making effects determinations for
proposed communications facilities that are inconsistent with the Advisory
Council on Historic Preservation's rules and accepted preservation
principles. Some routinely fail to abide by the Advisory Council on Historic
Preservation's rules that require reviews be conducted within a thirty-day
period. There is no need for a programmatic agreement to spur action on the
Commission's part to ensure that its delegated consultations with SHPOs are
conducted in accordance with the Advisory Council's rules.
I would urge the Commission to revisit its position on executing a
programmatic agreement at this time. The Commission should take the
opportunity afforded it by the hiring of a preservation officer to issue
rules for compliance with Section 106 of the National Historic Preservation
Act under the current 36 CFR Part 800. The rules should clearly articulate
what is expected of Commission-regulated parties in the Section 106 process
and what is expected of the Commission. The Commission should also issue
standards for ensuring that its delegates and their consultants are
providing State Historic Preservation Offices (and the Commission) with
sufficient information from which informed decisions may be made regarding
APEs, the presence or absence of historic properties, and the effects to
historic properties where they may be present. The standards should be
developed in consultation with the National Park Service or other qualified
professionals in the areas of landscape architecture, cultural geography,
and architectural history.
I have intentionally avoided commenting on the issue of Native American
consultation. The concerns of Native Americans have been articulated very
well by comments provided by such parties as Peter Noyes and William Day.
The Telecommunications Working Group meeting held in Washington on 10
December 2002 did not end with the members reaching a consensus on the
language and scope of the draft programmatic agreement. The members and
their various constituencies are much closer to understanding Section 106
compliance but they remain distant in their expectations for an agreement
that meets the needs of industry, the Commission, and the historic
preservation interests. The industry trade groups and corporate participants
in the Telecommunications Working Group have invested considerable human and
financial capital in trying to resolve the problems of Section 106
compliance for FCC projects. The payoff has been in a greater awareness of
the statute and its regulations and should continue in the development of a
Commission policy for Section 106 compliance that benefits all the
stakeholders.
Sincerely,
/s/
David S. Rotenstein, Ph.D.
cc: Telecommunications Working Group
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