The Co-Location Accord

It's not a war-ending treaty, but the Nationwide Programmatic Agreement for the Co-location of Wireless Antennas may improve relations between the wireless industry and historical preservation groups. The agreement gathers the FCC (www.fcc.gov), the Advisory Council on Historic Preservation (ACHP; www.achp.gov) and the National Conference of State Historic Preservation Officers (SHPOs; www.sso.org/ncshpo) to streamline the co-location process.

The Thin Co-Location Line

In a nutshell, the agreement allows co-location on existing sites without review by the SHPO. There are stipulations, though, based on whether the tower was built before or after March 16, 2001, and what environmental and historical evaluations, if any, have been done. That March 16 distinction is a critical facet of the agreement, according to Sheldon Moss, Crown Castle (www.crowncastle.com) director of government affairs.

“It draws a crystal clear line in the sand,” he said. “After March 16, 2001, any tower that is built without the full concurrence of the state historic preservation office is going to be a tower that is untouchable (for co-location) and dead in the water,” Moss said. “There is not going to be a wireless carrier on God's green earth that's going to take a chance at placing antennas on those kinds of facilities.”

Beth Kohler, Rural Cellular legal services director, (www.ruralcellular.com) added that the March 16 distinction acknowledges that, prior to the agreement, the co-location process was a mess. The industry's aggressive build-out inundated understaffed SHPO offices with historical-impact evaluations. Applications that were supposed to be reviewed within 30 days often ended up in limbo.

“Carriers didn't want to go forward without the SHPO sign-off, but the SHPO was non-responsive, so a number of carriers did go forward with tower construction,” Kohler said.

The agreement, then, was predicated just as much on SHPO needs as those of carriers and tower companies.

“The SHPOs finally said ‘uncle’ and went to the ACHP and said ‘let's eliminate some of the unnecessary stuff such as co-location on existing towers they've already looked at,’” said Rick Mandile, Sage Environmental (www.sageenvironmental.net) managing partner.

With the agreement, rogue sites built without SHPO approval now are open for co-location.

“Any activities up to March 16 (the programmatic agreement) will grandfather,” Kohler said.

There are conditions, however, that will require a co-location to receive approval from the SHPO. On towers constructed on or before March 16, antennas may be co-located without SHPO review unless:

• The extra antenna(s) will result in a substantial increase in the size of the tower (see definition below).

• The tower is under review for compliance with the National Historic Preservation Act (NHPA) or has an impact on historic property.

• The FCC has received a public complaint with substantiated evidence that the co-location would harm the historic property.

Stipulations for sites built after March 16 are the same with one additional requirement: The section 106 review, as required by the NHPA, and any associated environmental-impact assessments must be completed.

The programmatic agreement defines “substantial increase in the size of the tower” as:

• The new antenna(s) would increase the tower's height by more than 10%, or by the height of one additional antenna array, with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater.

• The new antenna(s) would involve installation of more than four new equipment cabinets or more than one new equipment shelter.

• The new antenna(s) would add an appurtenance that would protrude from the tower more than 20 feet, or more than the width of the tower structure at the appurtenance level, whichever is greater.

• The new antenna(s) would involve excavation outside the current site.

Mandile said this definition leaves wiggle room and could use clarification. The definition, as convoluted as it may be, is meant to keep the site's visual impact at a minimum, and typical sites should meet the definition, Kohler said.

“There could be exceptions, particularly if I'm a third or fourth carrier trying to get on the structure,” she said.

Peace, Love & Co-Location

The agreement stands as a mutually beneficial compromise between two starkly divided groups.

SHPO offices will be free to “take rubber stamp (applications) off of the table and concentrate on the ones that do require serious review,” said Richard Enright, Verizon Wireless (www.verizonwireless.com) director of engineering, New England.

But issues remain. Andrea Williams, CTIA (www.wow-com.com) assistant general counsel, called the agreement a good start, but not the end-all answer to siting conflicts.

“It's better than nothing,” she said. “We supported the co-location programmatic agreement because we needed immediate relief.”

Sprint PCS (www.sprintpcs.com) points out remaining issues with an FCC filing that asks the FCC to clarify the definition of historic property to include only those properties listed or eligible for inclusion in the National Register of Historic Places. The filing also argues that the FCC does not have the authority to obligate carriers to historical-impact reviews under the NHPA. Furthermore, the carrier argues that siting is not a federal undertaking; therefore, it is not subject to the NHPA.

Verizon Wireless subsequently submitted comments in support of Sprint PCS' filing.

At the root of the problem, though, is the question of who has the authority over siting in relation to environmental and historic properties. To get that answer, CTIA has filed a lawsuit against the ACHP.

“We anticipate a decision by late summer/early fall and (it will) hopefully put to bed this issue in terms of who has authority,” Williams said.

The FCC and the ACHP have been struggling, and the wireless industry is caught in the middle. Clarification appears to be on the way, but the time is now to capitalize on the programmatic agreement.

“The wireless industry has got to play by the rules, play by the terms of the agreement,” Moss said. “If it doesn't, then the whole thing is going to collapse, we're going to be back where we started from, and things could get a lot worse.”