1. What is a program comment? 

A program comment is an alternate way for federal agencies to meet their Section 106 obligations for a category of undertakings instead of conducting individual reviews under §§ 800.4 through 800.7 of the Section 106 regulations (36 CFR Part 800). Program comments can alter this standard process to better align with federal agency programs or types of undertakings. While a request for a program comment typically comes from a federal agency, a program comment also can be issued by the ACHP at its own initiative. Program comments are voted on and issued by the ACHP membership, and they contain provisions for amending their procedures. More information on program comments can be found here.   

2. What is the purpose of this Program Comment? 

The purpose of the Program Comment for Federal Communications Projects is to establish efficient and effective procedures for the consideration of historic properties in the deployment of communications projects and activities, including broadband and next generation technologies, particularly in unserved and underserved communities. Many of these efficiencies are based on procedures already established in existing ACHP program alternatives, including nationwide programmatic agreements (NPAs) and other program comments. 

The Program Comment was originally approved by the ACHP in 2017. At that time, it was limited to those communications projects that would take place on federal lands and property. However, in 2023, as a result of the significant investments in improving broadband access throughout the country, the National Telecommunications and Information Administration requested that the ACHP amend the Program Comment to make it available to any federal agency that had a communications project, regardless of whether it was on federal lands or property. The ACHP conducted consultation in accordance with the Program Comment’s amendment stipulation, and in March 2024, the chair of the ACHP approved the amendment, which included revising the title of the Program Comment to reflect its applicability to all federal communications undertakings. 

3. How does the Program Comment change the Section 106 review process for these projects? 

The Program Comment makes the Section 106 review process more efficient for covered telecommunications undertakings in three ways. First, it promotes a consistent and predictable procedure to avoid and minimize effects on historic properties when federal communications projects are being constructed. The Program Comment encourages: early coordination among the federal agency, applicant, Indian Tribes, Native Hawaiian organizations (NHOs), State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), and others; use of noninvasive techniques for testing below ground properties; and siting of projects in previously disturbed areas.  

A second efficiency is how the Program Comment specifies an agency should identify historic properties located in the undertaking’s Area of Potential Effect (APE). This Program Comment calls for the agency, or its applicant, to review existing records to identify historic properties within the APE. If no information is available, then qualified professionals help to determine whether the APE includes areas that have a high probability of containing National Register-eligible properties. If so, those areas within the APE will be avoided. If they cannot be avoided, the agency and applicant will consult with the SHPO/THPO, Indian Tribes, or NHOs to determine whether a survey or monitoring program should be developed and implemented. 

The third efficiency is to conditionally exempt a series of activities that do not require Section 106 review when certain thresholds are met. These conditionally-exempt activities include the following: 1) the placement of above-ground communications and cable lines on existing poles or structures; 2) the placement of above-ground connections to, and collocations on, buildings; 3) collocation of communications antennae on replacement or new towers; and 4) the installation of buried communications cable. The experience gained from implementing the Federal Communications Commission’s (FCC) two NPAs and the 2015 Amendment to the Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities Construction and Modification supports the conclusion that many broadband deployment activities have limited potential to affect historic properties and will avoid effects to historic properties when the conditions are met. 

4. When a communication undertaking involves multiple federal agencies, can there be a lead federal agency for Section 106 purposes? 

Yes. If more than one federal agency is involved in a communication deployment undertaking, a lead federal agency can be designated by the other federal agencies. The lead federal agency shall act on behalf of the other agencies, fulfilling their collective responsibilities under Section 106 for the particular undertaking. Agencies that do not designate another federal agency as lead remain individually responsible for their Section 106 compliance for that undertaking. See the ACHP’s Frequently Asked Questions about Lead Federal Agencies in Section 106 Review for more information.  

5. Does this program comment apply on Tribal lands? 

No, unless the federal agency proposes that the communications project occur on or affect historic properties on Tribal lands, and has the prior, written agreement of the relevant Indian Tribe. If such approval is given by a Tribe, the federal agency has to notify the ACHP prior to utilizing this Program Comment. 

6. What is the relationship between this Program Comment and the FCC’s Nationwide Programmatic Agreements?  

This Program Comment draws upon the successful practices within the FCC NPA for wireless collocations and the FCC NPA for wireless communications projects. Those NPAs have been successful in establishing efficiencies in the Section 106 review of tower construction and collocations. This Program Comment incorporates terms and exclusions from those NPAs. 

Federal agencies named in the Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities may elect to notify the SHPO and consulting parties when one or more elements of a project otherwise undergoing review under this Program Comment are subject to or excluded from Section 106 review by the FCC under the Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities. The named agency has no Section 106 responsibilities for such elements but may need to consider the results of the FCC’s review in its National Environmental Policy Act (NEPA) analysis. 

Where a federal land or property management agency follows the Program Comment for Federal Communications Projects to comply with Section 106 for an undertaking on federal lands or property, the FCC has no Section 106 responsibilities for that undertaking otherwise subject to or excluded from FCC review under the NPAs. The federal land or property management agency is responsible for the Section 106 review. 

7. What roles do applicants, SHPOs, THPOs, Indian Tribes, and NHOs play in this Program Comment? 

The federal agency consults with the appropriate SHPO, THPO, Indian Tribes, or NHOs when: 

• confirming the APE for each individual undertaking and providing notification of its intent to follow this Program Comment;  

• its Records Check identifies no information on the presence of historic properties within the APE, to then determine whether the APE includes areas that have a high probability of containing National Register-eligible properties;  

• review and approval of a site avoidance plan is necessary;  

• high probability areas within an APE cannot be avoided;  

• a discovery plan needs to be developed and implemented; and  

• the proposed removal of obsolete communications equipment and towers has the potential to adversely affect known historic properties.  

When the terms of the Program Comment do not apply to an undertaking, the federal agency must consult with the SHPOs, THPOs, Indian Tribes, NHOs, as appropriate, and other consulting parties in accordance with 36 CFR §§ 800.3 to 800.7 or an applicable program alternative under 36 CFR §§ 800.14. 

Applicants will often assist federal agencies in complying with Section 106, and in some instances, will be authorized by a federal agency to initiate consultation with a SHPO/THPO. Under such an authorization, an applicant may be allowed to consult with the SHPO/THPO to initiate the Section 106 review process, identify and evaluate historic properties, and assess effects. In any authorization, however, the federal agency remains responsible for ensuring all consultations with Indian Tribes are conducted in a sensitive manner respectful of Tribal sovereignty and the government-to-government relationship between the federal government and Indian Tribes. An agency may not delegate consultation with Indian Tribes to an applicant unless the affected Tribes have agreed to such an arrangement in advance. The Section 106 Applicant Toolkit can be a useful source of information for applicants in considering their role within the Section 106 process. 

8. Does my agency have to use this Program Comment to review the deployment of communications infrastructure? 

No, but given the Program Comment’s efficiencies, agencies are strongly encouraged to use it. However, there may be times when an agency will elect to use the standard process for each individual undertaking as set out in 36 CFR §§800.3 through 800.7. For instance, when there may be an adverse effect to a National Historic Landmark, agencies should consider using the standard process to meet the requirements of Section 110(f) of the National Historic Preservation Act. In addition, agencies can use other applicable program alternatives developed pursuant to 36 CFR § 800.14 to meet their Section 106 responsibilities for such undertakings. 

9. What activities require compensation to Tribes? 

Consistent with the ACHP’s Guidance on Assistance to Consulting Parties in the Section 106 Process, compensation for Section 106 consultation is not required. However, when an agency asks an Indian Tribe or any consulting party to do more than respond to its findings and determinations in connection with this Program Comment or any Section 106 review, the federal agency or applicant will enter into an appropriate arrangement to provide the Indian Tribe or consulting party reasonable payment for such services. This is further detailed at Section IV.F. of the Program Comment. Also, examples of these activities can be found in the linked guidance. 

10. How will the ACHP oversee the implementation of the Program Comment? 

Federal agencies are required to submit annual reports to the ACHP outlining their use of the Program Comment by December 1, beginning in 2024. Those reports will summarize, on a state-by-state basis, the projects reviewed under the Program Comment within a calendar year as well as the activities that resulted in adverse effects to historic properties. The annual report also will indicate whether any agreements regarding the applicability of this Program Comment on Tribal lands have been developed in the past calendar year, and which Indian Tribe(s) is a signatory, in addition to reporting on any significant issues that may have arisen while implementing the Program Comment, how those were addressed, and how they may be avoided in the future. In addition to these reports, the ACHP will convene an annual meeting with consulting parties. Based on the reports and the annual meeting, the ACHP will consider whether the Program Comment is working as intended, whether amendments are needed to improve its implementation, and whether additional guidance should be developed. 

11. How long is the Program Comment in effect? 

The Program Comment is in effect until December 31, 2033. It can be amended as necessary through that time, and prior to its expiration, the ACHP will consider whether its duration should be extended.