NATIONWIDE PROGRAMMATIC AGREEMENT

**for the**

# COLLOCATION OF WIRELESS ANTENNAS

# Executed by

**The FEDERAL COMMUNICATIONS COMMISSION,**

**The NATIONAL CONFERENCE OF STATE HISTORIC PRESERVATION OFFICERS**

**and**

**The ADVISORY COUNCIL ON HISTORIC PRESERVATION**

WHEREAS, the Federal Communications Commission (FCC) establishes rules
and procedures for the licensing of wireless communications facilities
in the United States and its Possessions and Territories; and,

WHEREAS, the FCC has largely deregulated the review of applications for
the construction of individual wireless communications facilities and,
under this framework, applicants are required to prepare an
Environmental Assessment (EA) in cases where the applicant determines
that the proposed facility falls within one of certain environmental
categories described in the FCC's rules (47 C.F.R. § 1.1307), including
situations which may affect historical sites listed or eligible for
listing in the National Register of Historic Places ("National
Register")*;* and,

WHEREAS, Section 106 of the National Historic Preservation Act (16
U.S.C. §§ 470 *et seq.*) ("the Act") requires federal agencies to take
into account the effects of their undertakings on historic properties
and to afford the Advisory Council on Historic Preservation (Council) a
reasonable opportunity to comment; and,

WHEREAS, Section 800.14(b) of the Council's regulations, "Protection of
Historic Properties" (36 CFR § 800.14(b)), allows for programmatic
agreements to streamline and tailor the Section 106 review process to
particular federal programs; and,

WHEREAS, in August 2000, the Council established a Telecommunications
Working Group to provide a forum for the FCC, Industry representatives,
State Historic Preservation Officers (SHPOs) and Tribal Historic
Preservation Officers (THPOs), and the Council to discuss improved
coordination of Section 106 compliance regarding wireless communications
projects affecting historic properties; and,

WHEREAS, the FCC, the Council and the Working Group have developed this
Collocation Programmatic Agreement in accordance with 36 CFR Section
800.14(b) to address the Section 106 review process as it applies to the
collocation of antennas (collocation being defined in Stipulation I.A
below); and,

WHEREAS, the FCC encourages collocation of antennas where technically
and economically feasible, in order to reduce the need for new tower
construction; and,

WHEREAS, the parties hereto agree that the effects on historic
properties of collocations of antennas on towers, buildings and
structures are likely to be minimal and not adverse, and that in the
cases where an adverse effect might occur, the procedures provided and
referred to herein are proper and sufficient, consistent with Section
106, to assure that the FCC will take such effects into account; and

WHEREAS, the execution of this Nationwide Collocation Programmatic
Agreement will streamline the Section 106 review of collocation
proposals and thereby reduce the need for the construction of new
towers, thereby reducing potential effects on historic properties that
would otherwise result from the construction of those unnecessary new
towers; and,

WHEREAS, the FCC and the Council have agreed that these measures should
be incorporated into a Nationwide Programmatic Agreement to better
manage the Section 106 consultation process and streamline reviews for
collocation of antennas; and,

WHEREAS, since collocations reduce both the need for new tower
construction and the potential for adverse effects on historic
properties, the parties hereto agree that the terms of this Agreement
should be interpreted and implemented wherever possible in ways that
encourage collocation; and

WHEREAS, the parties hereto agree that the procedures described in this
Agreement are, with regard to collocations as defined herein, a proper
substitute for the FCC's compliance with the Council's rules, in
accordance and consistent with Section 106 of the National Historic
Preservation Act and its implementing regulations found at 36 CFR Part
800; and

WHEREAS, the FCC has consulted with the National Conference of State
Historic Preservation Officers (NCSHPO) and requested the President of
NCSHPO to sign this Nationwide Collocation Programmatic Agreement in
accordance with 36 CFR Section 800.14(b)(2)(iii); and,

WHEREAS, the FCC sought comment from Indian tribes and Native Hawaiian
Organizations regarding the terms of this Nationwide Programmatic
Agreement by letters of January 11, 2001 and February 8, 2001; and,

WHEREAS, the terms of this Programmatic Agreement do not apply on
"tribal lands" as defined under Section 800.16(x) of the Council's
regulations, 36 CFR § 800.16(x) ("Tribal lands means all lands within
the exterior boundaries of any Indian reservation and all dependent
Indian communities."); and,

WHEREAS, the terms of this Programmatic Agreement do not preclude Indian
tribes or Native Hawaiian Organizations from consulting directly with
the FCC or its licensees, tower companies and applicants for antenna
licenses when collocation activities off tribal lands may affect
historic properties of religious and cultural significance to Indian
tribes or Native Hawaiian organizations; and,

WHEREAS, the execution and implementation of this Nationwide Collocation
Programmatic Agreement will not preclude members of the public from
filing complaints with the FCC or the Council regarding adverse effects
on historic properties from any existing tower or any activity covered
under the terms of this Programmatic Agreement.

NOW THEREFORE, the FCC, the Council, and NCSHPO agree that the FCC will
meet its Section 106 compliance responsibilities for the collocation of
antennas as follows.

**STIPULATIONS**

The FCC, in coordination with licensees, tower companies and applicants
for antenna licenses, will ensure that the following measures are
carried out.

I.  DEFINITIONS

For purposes of this Nationwide Programmatic Agreement, the following
definitions apply.

A.  "Collocation" means the mounting or installation of an antenna on an
    existing tower, building or structure for the purpose of
    transmitting and/or receiving radio frequency signals for
    communications purposes.

B.  "Tower" is any structure built for the sole or primary purpose of
    supporting FCC-licensed antennas and their associated facilities.

C.  "Substantial increase in the size of the tower" means:

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1)  The mounting of the proposed antenna on the tower would increase the
    existing height of the tower by more than 10%, or by the height of
    one additional antenna array with separation from the nearest
    existing antenna not to exceed twenty feet, whichever is greater,
    except that the mounting of the proposed antenna may exceed the size
    limits set forth in this paragraph if necessary to avoid
    interference with existing antennas; or

2)  The mounting of the proposed antenna would involve the installation
    of more than the standard number of new equipment cabinets for the
    technology involved, not to exceed four, or more than one new
    equipment shelter; or

3)  The mounting of the proposed antenna would involve adding an
    appurtenance to the body of the tower that would protrude from the
    edge of the tower more than twenty feet, or more than the width of
    the tower structure at the level of the appurtenance, whichever is
    greater, except that the mounting of the proposed antenna may exceed
    the size limits set forth in this paragraph if necessary to shelter
    the antenna from inclement weather or to connect the antenna to the
    tower via cable; or

4)  The mounting of the proposed antenna would involve excavation
    outside the current tower site, defined as the current boundaries of
    the leased or owned property surrounding the tower and any access or
    utility easements currently related to the site.

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II. APPLICABILITY

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A.  This Nationwide Collocation Programmatic Agreement applies only to
    the collocation of antennas as defined in Stipulation I.A, above.

B.  This Nationwide Collocation Programmatic Agreement does not cover
    any Section 106 responsibilities that federal agencies other than
    the FCC may have with regard to the collocation of antennas.

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III. COLLOCATION OF ANTENNAS ON TOWERS CONSTRUCTED ON OR BEFORE MARCH
     16, 2001

> A. An antenna may be mounted on an existing tower constructed on or
> before March 16, 2001 without such collocation being reviewed under
> the consultation process set forth under Subpart B of 36 CFR Part 800,
> unless:
>
> 1\. The mounting of the antenna will result in a substantial increase
> in the size of the tower as defined in Stipulation I.C, above; or
>
> 2\. The tower has been determined by the FCC to have an effect on one
> or more historic properties, unless such effect has been found to be
> not adverse through a no adverse effect finding, or if found to be
> adverse or potentially adverse, has been resolved, such as through a
> conditional no adverse effect determination, a Memorandum of
> Agreement, a programmatic agreement, or otherwise in compliance with
> Section 106 and Subpart B of 36 CFR Part 800; or
>
> 3\. The tower is the subject of a pending environmental review or
> related proceeding before the FCC involving compliance with Section
> 106 of the National Historic Preservation Act; or
>
> 4\. The collocation licensee or the owner of the tower has received
> written or electronic notification that the FCC is in receipt of a
> complaint from a member of the public, a SHPO or the Council, that the
> collocation has an adverse effect on one or more historic properties.
> Any such complaint must be in writing and supported by substantial
> evidence describing how the effect from the collocation is adverse to
> the attributes that qualify any affected historic property for
> eligibility or potential eligibility for the National Register.

IV. COLLOCATION OF ANTENNAS ON TOWERS CONSTRUCTED AFTER MARCH 16, 2001

> A. An antenna may be mounted on an existing tower constructed after
> March 16, 2001 without such collocation being reviewed under the
> consultation process set forth under Subpart B of 36 CFR Part 800,
> unless:
>
> 1\. The Section 106 review process for the tower set forth in 36 CFR
> Part 800 and any associated environmental reviews required by the FCC
> have not been completed; or
>
> 2\. The mounting of the new antenna will result in a substantial
> increase in the size of the tower as defined in Stipulation I.C,
> above; or
>
> 3\. The tower as built or proposed has been determined by the FCC to
> have an effect on one or more historic properties, unless such effect
> has been found to be not adverse through a no adverse effect finding,
> or if found to be adverse or potentially adverse, has been resolved,
> such as through a conditional no adverse effect determination, a
> Memorandum of Agreement, a programmatic agreement, or otherwise in
> compliance with Section 106 and Subpart B of 36 CFR Part 800; or
>
> 4\. The collocation licensee or the owner of the tower has received
> written or electronic notification that the FCC is in receipt of a
> complaint from a member of the public, a SHPO or the Council, that the
> collocation has an adverse effect on one or more historic properties.
> Any such complaint must be in writing and supported by substantial
> evidence describing how the effect from the collocation is adverse to
> the attributes that qualify any affected historic property for
> eligibility or potential eligibility for the National Register.

V.  COLLOCATION OF ANTENNAS ON BUILDINGS AND NON-TOWER STRUCTURES
    OUTSIDE OF HISTORIC DISTRICTS

> A. An antenna may be mounted on a building or non-tower structure
> without such collocation being reviewed under the consultation process
> set forth under Subpart B of 36 CFR Part 800, unless:
>
> 1\. The building or structure is over 45 years old;[^1] or
>
> 2\. The building or structure is inside the boundary of a historic
> district, or if the antenna is visible from the ground level of the
> historic district, the building or structure is within 250 feet of the
> boundary of the historic district; or
>
> 3\. The building or non-tower structure is a designated National
> Historic Landmark, or listed in or eligible for listing in the
> National Register of Historic Places based upon the review of the
> licensee, tower company or applicant for an antenna license; or

4\. The collocation licensee or the owner of the tower has received
written or electronic notification that the FCC is in receipt of a
complaint from a member of the public, a SHPO or the Council, that the
collocation has an adverse effect on one or more historic properties.
Any such complaint must be in writing and supported by substantial
evidence describing how the effect from the collocation is adverse to
the attributes that qualify any affected historic property for
eligibility or potential eligibility for the National Register.

> B. Subsequent to the collocation of an antenna, should the SHPO/THPO
> or Council determine that the collocation of the antenna or its
> associated equipment installed under the terms of Stipulation V has
> resulted in an adverse effect on historic properties, the SHPO/THPO or
> Council may notify the FCC accordingly. The FCC shall comply with the
> requirements of Section 106 and 36 CFR Part 800 for this particular
> collocation.

VI. RESERVATION OF RIGHTS

    Neither execution of this Agreement, nor implementation of or
    compliance with any term herein shall operate in any way as a waiver
    by any party hereto, or by any person or entity complying herewith
    or affected hereby, of a right to assert in any court of law any
    claim, argument or defense regarding the validity or interpretation
    of any provision of the National Historic Preservation Act (16
    U.S.C. §§ 470 *et seq*.) or its implementing regulations contained
    in 36 CFR Part 800.

VII. MONITORING

> A. FCC licensees shall retain records of the placement of all licensed
> antennas, including collocations subject to this Nationwide
> Programmatic Agreement, consistent with FCC rules and procedures.
>
> B. The Council will forward to the FCC and the relevant SHPO any
> written objections it receives from members of the public regarding a
> collocation activity or general compliance with the provisions of this
> Nationwide Programmatic Agreement within thirty (30) days following
> receipt of the written objection. The FCC will forward a copy of the
> written objection to the appropriate licensee or tower owner.

VIII. AMENDMENTS

      If any signatory to this Nationwide Collocation Programmatic
      Agreement believes that this Agreement should be amended, that
      signatory may at any time propose amendments, whereupon the
      signatories will consult to consider the amendments. This
      agreement may be amended only upon the written concurrence of the
      signatories.

IX. TERMINATION

> A. If the FCC determines that it cannot implement the terms of this
> Nationwide Collocation Programmatic Agreement, or if the FCC, NCSHPO
> or the Council determines that the Programmatic Agreement is not being
> properly implemented by the parties to this Programmatic Agreement,
> the FCC, NCSHPO or the Council may propose to the other signatories
> that the Programmatic Agreement be terminated.
>
> B. The party proposing to terminate the Programmatic Agreement shall
> notify the other signatories in writing, explaining the reasons for
> the proposed termination and the particulars of the asserted improper
> implementation. Such party also shall afford the other signatories a
> reasonable period of time of no less than thirty (30) days to consult
> and remedy the problems resulting in improper implementation. Upon
> receipt of such notice, the parties shall consult with each other and
> notify and consult with other entities that are either involved in
> such implementation or that would be substantially affected by
> termination of this Agreement, and seek alternatives to termination.
> Should the consultation fail to produce within the original remedy
> period or any extension, a reasonable alternative to termination, a
> resolution of the stated problems, or convincing evidence of
> substantial implementation of this Agreement in accordance with its
> terms , this Programmatic Agreement shall be terminated thirty days
> after notice of termination is served on all parties and published in
> the Federal Register.
>
> C. In the event that the Programmatic Agreement is terminated, the FCC
> shall advise its licensees and tower construction companies of the
> termination and of the need to comply with any applicable Section 106
> requirements on a case-by-case basis for collocation activities.

X.  ANNUAL MEETING OF THE SIGNATORIES

> The signatories to this Nationwide Collocation Programmatic Agreement
> will meet on or about September 10, 2001, and on or about September 10
> in each subsequent year, to discuss the effectiveness of this
> Agreement, including any issues related to improper implementation,
> and to discuss any potential amendments that would improve the
> effectiveness of this Agreement.

XI\. DURATION OF THE PROGRAMMATIC AGREEMENT

> This Programmatic Agreement for collocation shall remain in force
> unless the Programmatic Agreement is terminated or superseded by a
> comprehensive Programmatic Agreement for wireless communications
> antennas.

Execution of this Nationwide Programmatic Agreement by the FCC, NCSHPO
and the Council, and implementation of its terms, evidence that the FCC
has afforded the Council an opportunity to comment on the collocation as
described herein of antennas covered under the FCC's rules, and that the
FCC has taken into account the effects of these collocations on historic
properties in accordance with Section 106 of the National Historic
Preservation Act and its implementing regulations, 36 CFR Part 800.

**\
**

**FEDERAL COMMUNICATIONS COMMISSION**

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Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**ADVISORY COUNCIL ON HISTORIC PRESERVATION**

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Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**NATIONAL CONFERENCE OF STATE HISTORIC PRESERVATION OFFICERS**

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Date: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

[^1]: Suitable methods for determining the age of a building include,
    but are not limited to: (1) obtaining the opinion of a consultant
    who meets the Secretary of Interior's Professional Qualifications
    Standards (36 CFR Part 61) or (2) consulting public records.