The ACHP and Broadband
The ACHP is an independent federal agency created by the National Historic Preservation Act of 1966 (NHPA) with a mission focus on preservation. The ACHP issues the regulations implementing the review process established by Section 106 of the NHPA, designed to ensure federal agencies act as responsible stewards when their actions may affect historic properties. The ACHP recognizes the importance of connecting all Americans with broadband Internet and 5G cellular service and has long supported the development of program improvements and efficiencies in carrying out federal historic preservation reviews when federally permitted, assisted, or licensed broadband projects are planned. The ACHP has coordinated with federal agencies that play a lead role in supporting these activities, including the Federal Communications Commission (FCC), the United States Department of Agriculture’s Rural Utilities Service (RUS), the National Telecommunications and Information Administration (NTIA), the Federal Emergency Management Agency (FEMA), and other agencies to carry out these efforts.
Section 106 Review Efficiencies
The high volume of telecommunications undertakings licensed or assisted by federal agencies, along with the often minimal effects on historic properties from these projects, have suited them to the use of program alternatives to optimize the efficiency and effectiveness of Section 106 reviews. Program alternatives are regulatory tools built in to the Section 106 regulations that allow tailoring of the review process to program needs. A suite of such tools collectively have been used to streamline Section 106 reviews for almost all telecommunications and broadband actions subject to Section 106 review.
The first tailoring efforts began with execution of a nationwide Programmatic Agreement (nPA) with the FCC for the collocation of wireless antennas in 2001 (Collocation nPA), followed soon after by another nPA with the FCC in 2005 encompassing a broad array of its activities, including cell tower construction (Wireless Facilities nPA). Together, these nationwide agreements established important new efficiencies and consistent procedures for consulting with stakeholders about the collocation of equipment onto some existing communication towers as well as the construction of new tower facilities. The Collocation nPA was amended in 2020 to correct an unintentional inconsistency with the Wireless Facilities nPA in how to treat ground disturbance associated with modifications to an existing tower site. The revision removes a potential disincentive to collocation.
Beyond work with the FCC, the ACHP has helped other federal agencies find efficiencies in the review of broadband projects they may fund or carry out on federal lands or property. In 2009, the ACHP, RUS, NTIA, and National Conference of State Historic Preservation Officers (NCSHPO) entered into an nPA for the Broadband Technology Opportunities and Broadband Initiatives Programs to provide streamlined procedures for broadband projects funded under the American Recovery and Reinvestment Act of 2009. The same year, the ACHP issued a Program Comment to avoid duplicative Section 106 reviews for wireless communications facilities construction and modification projects funded by RUS, NTIA, and FEMA that are also subject to review by the FCC, allowing RUS, NTIA, and FEMA to use the conclusions of FCC reviews carried out under the agency’s nPAs described above. The Program Comment was amended in 2015 and 2020 to add several additional agencies, including other components of the Department of Homeland Security, Federal Railroad Administration, Federal Transit Administration, FirstNet, and Office of Surface Mining Reclamation and Enforcement. In May 2017, similar efficiencies were extended to the permitting and approval of 5G projects proposed on federal lands and properties through another Program Comment developed in concert with several federal agencies.
In 2018, the ACHP entered into an nPA with NCSHPO and USDA’s Rural Development (RD) agencies to improve the timing and coordination of Section 106 reviews for grants for projects improving water, electrification, broadband, and other sectors. This nationwide agreement better enables RUS and other RD agencies to provide billions of dollars in grants annually to rural communities and tribal nations while avoiding impacts to historic properties. The agreement offers USDA the flexibility to negotiate specific exemptions, tribal consultation protocols, and other means of further tailoring the review process for its development programs.
The ACHP actively participates in federal workgroups to improve environmental reviews for broadband-related activities, including the American Broadband Initiative, the Broadband Interagency Working Group established to improve coordination and reduce regulatory barriers to broadband deployment, and the Federal Permitting Improvement Steering Council. The ACHP has offered to work closely with FCC to develop Section 106 compliance solutions for current broadband deployment concerns, such as 5G small cell facilities and cell towers built between March 2001 and March 2005 (“twilight towers”) for which FCC cannot confirm a Section 106 review was completed. A solution would address the potential effects to historic properties that may have occurred at the time of construction and allow FCC to approve the collocation of wireless equipment on the towers in accordance with the 2001 Collocation nPA.
Program Alternatives for Broadband Project Section 106 Reviews
- Federal Communications Commission Nationwide Programmatic Agreement for Collocation of Wireless Antennas
- Federal Communications Commission Nationwide Programmatic Agreement for Telecommunications Projects
- Program Comment for Wireless Communications Facilities
- Program Comment for Positive Train Control
- Program Comment for Communications Projects on Federal Lands and Property