Raising broad questions about how the FCC interpreted federal his...

an FCC ruling on the proposed tower projects, the ACHP raised concerns about the FCC’s possibly overstepping its authority in that area. “A far-reaching determination such as the Commission proposes seriously impinges upon the ACHP’s recognized authority and responsibility to guide the government-wide implementation and interpretation of Section 106,” it said. The ACHP objection, filed directly with Chmn. Powell Fri., came as House Resources Committee Chmn. Pombo (R-Cal.) was raising concerns about the expanded reach that ACHP had given to parts of the National Historic Preservation Act that addressed the siting of wireless towers and other facilities (CD Nov 3 p1). The letter to Powell from ACHP Chmn. John Nau involves 2 towers in Dutchess County, N.Y., and the impact on the Taconic State Parkway, which ACHP said was eligible for listing on the National Register of Historic Places. The tower companies, Independent Wireless One and American Tower, were unable to reach agreement with the N.Y. State Historic Preservation Officer on how the tower projects should be treated under ACHP rules protecting historic properties as part of the Sec. 106 review process of the NHPA. As a result, the FCC became involved in the Sec. 106 review to resolve the disagreement and produce an official agency finding. The FCC last month sided with the tower companies’ findings that the proposed construction of the 2 sites wouldn’t have an impact on the Taconic Parkway. “After careful review of the [FCC] submission, the ACHP must object to the Commission’s effect finding,” Nau wrote. “Our objection is based in part upon the Commission’s own acknowledgment that the tower will introduce visual elements that, while sympathetic to the parkway and its modern uses, would alter views… in a manner that may diminish the historic integrity of this designed landscape,” Nau said. Nau said the FCC staff analysis, which had solicited ACHP feedback on its conclusion, also didn’t take into account the “cumulative impact” of telecom towers along the parkway. More broadly, Nau said the FCC’s proposed finding “raises serious questions of general interpretation of Section 106 and its application to historic transportation facilities and, by analogy, a broad range of other historic properties.” Nau cautioned that such interpretations “must not be made unilaterally by a single federal agency but rather require the involvement of the ACHP.” He told Powell he was bringing the ACHP’s objections to his attention “because of their precedential nature and because of their impact on the current negotiations under way among the Commission, the National Conference of State Historic Preservation Officers, Indian tribes, industry and the ACHP” to draft a national program agreement on tower siting.