The FCC could still include an item on a national programmatic agreement (NPA) for tower siting on its agenda for the Thurs. open meeting, though it wasn’t on the sunshine notice (CD March 5 p7). Several sources said Comr. Abernathy had sought additional time for discussion of the proposed tower siting pact. Once an item is in the public notice for an agenda meeting, ex parte communications with the FCC initiated by outside parties must stop. This way, more time is allowed for communication on outstanding issues, sources said. Several industry sources said they viewed the opening as a positive development after thorny NPA issues prompted a flurry of ex parte filings last week. The pending NPA aims to streamline tower siting reviews under Sec. 106 of the National Historic Preservation Act. Sec. 106 requires federal agencies to consider the effects of an “undertaking,” including tower construction, on historic properties. Last month, wireless carriers and historic preservation officials failed to bridge an impasse on several issues connected to the proposed agreement (CD Feb 20 p3). The Commission had given stakeholders until Feb. 19 to work out remaining differences, delaying a vote on the item from Feb. to the March agenda meeting. The agreement has been expected to be teed up for FCC approval as a report and order. The agreement was designed to become a pact signed by the FCC, Advisory Council for Historic Preservation and the National Conference of State Historic Preservation Officers. Meanwhile, Kris Monteith, deputy chief of the FCC’s Consumer & Governmental Affairs Bureau (CGB), told industry stakeholders the agency had made changes to a draft best practices document in response to concerns raised in discussions last week. The FCC has been working with the United South & Eastern Tribes (USET) on voluntary best practices for tower siting that could affect sites of cultural and religious significance on tribal land. Among concerns raised by industry over the earlier draft was the extent to which a non-response by a tribe on a tower siting request would lead to the potentially time-consuming step of FCC intergovernmental consultation with tribes (CD March 5 p9). “We will be making some changes to the draft document that we believe will be viewed positively from industry standpoint,” Monteith said, noting the changes stemmed from a discussion the Wireless Bureau and CGB had last week with USET officials. The agency also said it would release the draft best practices document in full to solicit industry feedback. Earlier in the week, the agency had circulated a summary, which Monteith said in the e-mail had created uncertainty in industry about what the rest of the document looked like. She said the full document was similar to the extensive summary released earlier. The FCC asked for industry feedback by the end of the day Thurs. “This is a good thing,” said one industry source of the additional time the FCC gave before the NPA is placed on an agenda for an open meeting. Meanwhile, a coalition of wireless companies told the FCC that negotiations in the last few weeks with the ACHP and others on the NPA had advanced in some areas. They cited progress on the issue of properties whose eligibility for the National Register of Historic Places is eligible but not yet determined. The coalition, which includes Cingular, Verizon Wireless, PCIA and T-Mobile, said compromise had been reached on the issue of potentially eligible properties. The agreement was that a requirement could be removed from the NPA concerning identification surveys for potentially eligible properties for visual effects. Other areas of agreement were that the NPA not mandate the use of qualified professionals for identification of eligible properties readily ascertainable from the office of a state historic preservation officer. In a separate filing last week, CTIA said U.S. Cellular has stressed the importance of the practical implications of the NPA as it relates to mid-size carriers and their quests for status as eligible telecom carriers. CTIA raised concerns that the NPA not dramatically increase costs and create more delays for the review process.

The FCC summarily rejected an Infinity Bcstg. petition for reconsideration of $27,500 indecency fine, the maximum per violation. The FCC issued the fine for indecent material that aired on Infinity’s WKRK(FM) Detroit, “Deminski and Doyle Show,” which it said aired graphic depictions of sex acts while children could be listening (CD Dec 9/03 p12). Infinity’s petition raised constitutional and other arguments the FCC had rejected at the time the fine was issued, the FCC said. “The material was some of the most egregious broadcast indecency that I have yet encountered,” Comr. Adelstein said. Comr. Martin thought the $27,500 fine was inadequate. “I would have found several violations within this program and assessed the statutory maximum for each violation, for a total fine of over $200,000,” Martin said. Infinity has no comment, a spokesman said.

Pressured by Congress to more-aggressively enforce indecency violations, FCC Chmn. Powell said the Commission would consider indecency violations when renewing a broadcaster’s license. “We will give serious consideration to designating for hearing renewal applications of licensees with serious or repeated indecency violations,” Powell said in a March 2 letter to House Commerce Committee ranking Democrat Dingell (Mich). The Committee voted overwhelmingly to raise FCC fines under the rewritten bill, called the Broadcast Decency Enforcement Act of 2004 (CD March 4 p1).

CTIA’s board gave a $13-million shot in the arm last year to the group’s Wireless Foundation, which the non-profit in turn has largely reinvested in a real estate transaction for the group’s new Washington hq. The Foundation’s decision to take a stake in the land deal was made “to create a predictable return on the endowment” created by the gift to the foundation, a CTIA spokesman said. “The CTIA board’s decision to fund the Foundation and the Foundation’s decision to purchase the land were 2 separate decisions.”

An FCC draft of voluntary best practices on tower siting reviews involving tribes would call for the Commission to initiate govt.-to-govt. consultation with a tribe if it failed to respond to initial contact from a siting applicant. FCC Chmn. Powell said last month at an Arlington, Va., conference of the United South & Eastern Tribes (USET) that USET and the Commission were in the final stages of drafting voluntary best practices for siting towers that could affect religious sites on tribal land. The best practices involve identifying “practical, voluntary” methods by which the tower industry and USET tribes can work to preserve properties of religious and cultural significance to tribes. The National Historic Preservation Act requires federal agencies to take into consideration the effects of their undertaking on historic properties included in or eligible for the National Register of Historic Places, including tribal sites. One industry source noted that although the best practices were voluntary they were important because tribes may require them as part of negotiations on tower siting and because they could play a critical role in showing a good faith effort to negotiate. FCC staff recently asked for industry feedback on the summary of best practices. The source said one industry concern about the draft best practices was the extent to which a non-response from a tribe would entail FCC intergovernmental consultation with tribes, a step that would add time to the siting review process. Another concern involves compensation of tribes for professional services. A summary of the draft best practices notes that in line with the requirements of the Advisory Council on Historic Preservation, payment to a tribe is appropriate when an agency or applicant asks the tribe to take on a role as consultant in identifying historic sites of tribal significance. The summary said that in “providing their special expertise, tribes are fulfilling a consultant role.” One source said that a concern by some in industry is not that tribes be compensated for providing such consultation services, but the extent to which such payments would be made to tribal representatives acting as both consultants on a project and judges as to whether the proposed tower raised objections. The draft summary sets up a 2-step process in which applicants can contact a tribe “in a good faith, respectful and culturally sensitive manner befitting the nature of correspondence with a sovereign government.” The tribal official would have 10 business days to advise a tower applicant whether there isn’t a likelihood of eligible properties of interest to the tribe in the area. If there may be properties eligible for the National Register, the tower siting applicant and tribal official would discuss protection measures. If the tribe didn’t respond in 10 business days, the siting applicant would advise the tribe and the FCC in writing of this failure to respond, the draft summary said. “Upon receipt of information that a tribe has failed to respond to an applicant’s initial contact, the Commission will initiate government-to-government consultation under Section 106,” the draft said. USET said last month the agreement on best practices affirmed “government to government” relations between USET tribes and the U.S. The FCC also created a database last month for a voluntary system that Chmn. Powell said would provide an “early notification” of tower construction that might affect historic properties or tribal religious sites.

The House Commerce Committee voted overwhelmingly Wed. to raise FCC fines for “indecent” broadcasts to a level even higher than previously proposed. HR-3717, which was completely rewritten, gives the FCC authority to levy fines up to $500,000 for each violation, vs. the $275,000 previously proposed. The rewritten bill, called the Broadcast Decency Enforcement Act of 2004, will require the FCC to hold a license revocation hearing for a 3rd offense and create a 180-day time limit (or so-called shot clock) for the FCC to determine whether broadcasters have violated the indecency statutes.

The FCC is within its authority to impose indecency fines on satellite radio broadcasters, but might well have to jump over constitutional hurdles to do so, FCC Comr. Martin said in response to questions at the NAB’s State Leadership meeting in Washington.

State regulators are struggling to untangle the effects of the U.S. Appeals Court, D.C., ruling that struck down the FCC’s Triennial Review Order (TRO) delegation to the states of authority to determine the competitive need for network unbundling (CD March 3 p1). Some state regulators told us the states should continue with their TRO cases, while others said the state reviews should either be discontinued or refocused.

The UNE decision of the U.S. Appeals Court, D.C., will be overturned by the Supreme Court, CompTel/Ascent Alliance Pres. Russell Frisby told reporters in a conference call Wed. “We feel good because this decision was so outrageous that we do believe it’s going to end up in the Supreme Court,” he said. He acknowledged, however that “obviously, there is a real danger here… But we are not going to go away today, tomorrow or on the 61st day,” after the stay of the court order is scheduled to be lifted.

There was no agreement on whether the FCC should grant Level 3 petition seeking relief from access charges on “voice-embedded IP communications,” in comments filed with the Commission. Level 3 had asked the agency to forbear on rules that might be interpreted as permitting LECs to impose access charges on IP traffic originating or terminating on the public switched telephone network (PSTN), while the agency completes its reform of intercarrier compensation. The FCC last month ruled that Pulver.com’s computer-to- computer Free World Dialup service was an unregulated information service, marking the first “easy” step in addressing IP-based services (CD Feb 13 p1). However, many agreed Level 3 petition dealing with VoIP that touches the PSTN, raised more complicated issues, which should be addressed in the forthcoming VoIP rulemaking proceeding.