The Federal Communications Commission (“FCC”) today released a Public Notice soliciting comment on its proposed “Amended Collocation Agreement” intended to streamline the government review process concerning small wireless antennas and associated equipment such as small cell facilities and Distributed Antenna Systems (“DAS”) on land designated as historical property. Comments are due by June 13, 2016.
Section 106 of The National Historic Preservation Act (“NHPA”) requires federal agencies to account for their proposed activities on historic properties, and allow the Advisory Council on Historic Preservation (“ACHP”) to comment on the adverse effects of such activities. The FCC’s environmental rules incorporate NHPA Section 106’s requirements that FCC licensees and applicants ascertain whether a proposed action will affect a historical site. If so, the applicant or licensee must complete a in a lengthy “Section 106 Review” before commencing its proposed action.
The FCC previously modified the Section 106 Review requirements regarding the installation (“collocation”) of small wireless antennas and related equipment on existing towers, buildings and other structures via a “Collocation Agreement” with ACHP. Under this Agreement, most collocations on existing structures are excluded from Section 106 Reviews, with a few exceptions. The proposed Amended Collocation Agreement seeks to expand the exclusions for small cells and DAS as follows. The main proposals are as follows:
Collocation on Structures Outside of Historic Districts
The current Collocation Agreement contains an exclusion for collocations outside of historical districts, on buildings and non-tower structures that are not more than 45 years old. The proposed Agreement contains an amendment that would exclude from review small wireless antennas and associated equipment mounted on buildings, non-tower structures, or the interior of buildings over 45 years old if they are not on a historic site or located at least 250 feet outside the boundary of a historic district. This exclusion does not apply if the owner of a building or structure has received notification of a complaint that the collocation would have an adverse effect on a historic site. The amendment also includes a “volumetric limit” for antennas and equipment eligible for the exclusion, as well as restrictions on ground disturbance.
Minimally Visible Deployments
The Amended Collocation Agreement would exclude from review small wireless antennas and equipment located on or in a building or on a non-tower structure located on a historic site or within 250 feet of a historic district if they are “minimally visible.” To qualify for this exclusion, an antenna or antenna enclosure must: (a) be the only equipment that is visible from the ground level or from public places within a building; (b) not exceed three cubic feet in volume; and (c) be installed using “stealth techniques that match or complement the structure or building on which or in which it is installed. The antenna’s associated equipment must also be minimally visible and may not damage historical materials.
“Visible Antennas” Located on Historic Sites or In Historic Districts
The new Agreement would provide narrow exclusions for visible small wireless antennas and associated equipment in historic districts. One such exclusion is for antennas and equipment mounted on a utility structure, but not on traffic lights, lamp posts or other structures whose primary purpose is to provide public lighting. There are various nuances to this exemption which are beyond this scope of this advisory.
Minor Amendments
The Amended Collocation Agreement contains various minor proposals such as: (a) defining the terms “antenna” and “collocation”; (b) clarifying the terms of the exclusions; (c) simplifying the criteria that make towers ineligible; and (d) providing a process for the public to notify the FCC regarding concerns of how the Collocation Agreement is applied.
The CommLaw Group has been following this proceeding very closely. If you have any questions about this proceeding or anything related to small cell/DAS implementation, please contact Ronald E. Quirk at req@commlawgroup.com or 703-714-1305 for additional information.
