\[Month Day\], 2003

INTRODUCTION

WHEREAS, Section 106 of the National Historic Preservation Act of 1966,
as amended ("NHPA") (codified at 16 U.S.C. § 470f), requires federal
agencies to take into account the effects of certain of their
Undertakings on Historic Properties (see Section II, below), included in
or eligible for inclusion in the National Register of Historic Places
("National Register"), and to afford the Advisory Council on Historic
Preservation ("Council") a reasonable opportunity to comment with regard
to such Undertakings; and

WHEREAS, under the authority granted by Congress in the Communications
Act of 1934, as amended (47 U.S.C. § 151 *et seq*.), the Federal
Communications Commission ("Commission") establishes rules and
procedures for the licensing of non‑federal government communications
services, and the registration of certain antenna structures in the
United States and its Possessions and Territories; and

WHEREAS, Congress and the Commission have deregulated or streamlined the
application process regarding the construction of individual Facilities
in many of the Commission's licensed services; and

WHEREAS, under the framework established in the Commission's
environmental rules, 47 C.F.R. §§ 1.1301-1.1319, Commission licensees
and applicants for authorizations and antenna structure registrations
("Applicants") are required to prepare, and the Commission is required
to independently review and approve, a pre-construction Environmental
Assessment ("EA") in cases where a proposed tower or antenna may
significantly affect the environment, including situations where a
proposed tower or antenna may affect Historic Properties that are either
listed in or eligible for listing in the National Register, including
properties of religious and cultural importance to an Indian tribe or
Native Hawaiian organization ("NHO") that meet the National Register
criteria; and

WHEREAS, the Council has adopted rules implementing Section 106 of the
NHPA (codified at 36 C.F.R. Part 800) and setting forth the process,
called the "Section 106 process," for complying with the NHPA; and

WHEREAS, pursuant to the Commission's rules and the terms of this
Nationwide Programmatic Agreement for Review of Effects on Historic
Properties for Undertakings Approved by the Federal Communications
Commission ("Nationwide Agreement"), Applicants have been authorized,
consistent with the terms of the memorandum from the Council to the
Commission, titled "Delegation of Authority for the Section 106 Review
of Telecommunications Projects," dated September 21, 2000, to initiate,
coordinate, and assist the Commission with compliance with many aspects
of the Section 106 review process for their Facilities; and

WHEREAS, in August 2000, the Council established a Telecommunications
Working Group (the "Working Group") to provide a forum for the
Commission, the Council, the National Conference of State Historic
Preservation Officers ("Conference"), individual State Historic
Preservation Officers ("SHPOs"), Tribal Historic Preservation Officers
("THPOs"), other tribal representatives, communications industry
representatives, and other interested members of the public to discuss
improved Section 106 compliance and to develop methods of streamlining
the Section 106 review process; and

WHEREAS, Section 800.14(b) of the Council\'s regulations (36 C.F.R
§ 800.14(b)) allows for programmatic agreements to streamline and tailor
the Section 106 review process to particular federal programs, if they
are consistent with the Council's regulations; and

WHEREAS, the Commission, the Council, and the Conference executed on
March 16, 2001, the Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas (the "Collocation Agreement"), in order
to streamline review for the collocation of antennas on existing towers
and thereby reduce the need for the construction of new towers
(Attachment 1 to this Nationwide Agreement); and

WHEREAS, the Council, the Conference, and the Commission now agree it is
desirable to further streamline and tailor the Section 106 review
process for Facilities that are not excluded from Section 106 review
under the Collocation Agreement while protecting Historic Properties
that are either listed in or eligible for listing in the National
Register; and

WHEREAS, the Working Group agrees that a nationwide programmatic
agreement is a desirable and effective way to further streamline and
tailor the Section 106 review process as it applies to Facilities; and

WHEREAS, this Nationwide Agreement will, upon its execution by the
Council, the Conference, and the Commission, constitute a substitute for
the Council\'s rules with respect to certain Commission Undertakings;
and

WHEREAS, the Commission has consulted with Indian tribes regarding this
Nationwide Agreement; and

WHEREAS, this Nationwide Agreement provides for appropriate public
notification and participation in connection with the Section 106
process; and

WHEREAS, Section 101(d)(6) of the NHPA provides that federal agencies
"shall consult with any Indian tribe or Native Hawaiian organization"
that attaches religious and cultural significance to properties of
traditional religious and cultural importance that may be determined to
be eligible for inclusion in the National Register that might be
affected by a federal undertaking (16 U.S.C. § 470a(d)(6)); and

WHEREAS, the Commission has adopted a "Statement of Policy on
Establishing a Government-to-Government Relationship with Indian Tribes"
dated June 23, 2000, pursuant to which the Commission: recognizes the
unique legal relationship that exists between the federal government and
Indian tribal governments, as reflected in the Constitution of the
United States, treaties, federal statutes, Executive orders, and
numerous court decisions; affirms the federal trust relationship with
Indian tribes, and recognizes that this historic trust relationship
requires the federal government to adhere to certain fiduciary standards
in its dealings with Indian tribes; commits to working with Indian
tribes on a government-to-government basis consistent with the
principles of tribal self-governance; commits, in accordance with the
federal government's trust responsibility, and to the extent
practicable, to consult with tribal governments prior to implementing
any regulatory action or policy that will significantly or uniquely
affect tribal governments, their land and resources; strives to develop
working relationships with tribal governments, and will endeavor to
identify innovative mechanisms to facilitate tribal consultations in the
Commission's regulatory processes; and endeavors to streamline its
administrative process and procedures to remove undue burdens that its
decisions and actions place on Indian tribes; and

WHEREAS, the Commission does not delegate under this Programmatic
Agreement any portion of its responsibilities to Indian tribes and NHOs,
including its obligation to consult under Section 101(d)(6) of the NHPA;
and

WHEREAS, the terms of this Nationwide Agreement are consistent with and
do not attempt to abrogate the rights of Indian tribes or NHOs to
consult directly with the Commission regarding the construction of
Facilities; and

WHEREAS, the execution and implementation of this Nationwide Agreement
will not preclude Indian tribes or NHOs, SHPO/THPOs, local governments,
or members of the public from filing complaints with the Commission or
the Council regarding effects on Historic Properties from any Facility
or any activity covered under the terms of the Nationwide Agreement; and

WHEREAS, Indian tribes and NHOs may request Council involvement in
Section 106 cases that present issues of concern to Indian tribes or
NHOs (see 36 C.F.R. Part 800, Appendix A, Section (c)(4)); and

WHEREAS, the Council, the Conference and the Commission recognize that
Applicants' use of qualified professionals experienced with the NHPA and
Section 106 can streamline the review process and minimize potential
delays; and

WHEREAS, the Commission has created a position and hired a cultural
resources professional to assist with the Section 106 process;

NOW THEREFORE, in consideration of the above provisions and of the
covenants and agreements contained herein, the Council, the Conference
and the Commission (the "Parties") agree as follows:

I.  APPLICABILITY AND SCOPE OF THIS NATIONWIDE AGREEMENT

    A.  This Nationwide Agreement (1) excludes from Section 106 review
        certain Undertakings involving the construction and modification
        of Facilities, and (2) streamlines and tailors the Section 106
        review process for other Undertakings involving the construction
        and modification of Facilities. An illustrative list of
        Commission activities in relation to which Undertakings covered
        by this Agreement may occur is provided as Attachment 2 to this
        Agreement.

    B.  This Nationwide Agreement applies only to federal Undertakings
        as determined by the Commission ("Undertakings"). The Commission
        has sole authority to determine what activities undertaken by
        the Commission or its Applicants constitute Undertakings within
        the meaning of the NHPA. Nothing in this Agreement shall
        preclude the Commission from revisiting or affect the existing
        ability of any person to challenge any prior determination of
        what does or does not constitute an Undertaking. Maintenance and
        servicing of Towers, Antennas, and associated equipment are not
        deemed to be Undertakings subject to Section 106 review.

    C.  This Agreement does not apply to Antenna Collocations that are
        exempt from Section 106 review under the Collocation Agreement
        (see Attachment 1). Pursuant to the terms of the Collocation
        Agreement, such Collocations shall not be subject to the Section
        106 review process and shall not be submitted to the SHPO/THPO
        for review. This Agreement does apply to collocations that are
        not exempt from Section 106 review under the Collocation
        Agreement.

    D.  This Agreement does not apply on "tribal lands" as defined under
        Section 800.16(x) of the Council\'s regulations, 36
        C.F.R. § 800.16(x) ("Tribal lands means all lands within the
        exterior boundaries of any Indian reservation and all dependent
        Indian communities."). This Nationwide Agreement, however, will
        apply on tribal lands should a tribe, pursuant to appropriate
        tribal procedures and upon reasonable notice to the Council,
        Commission, and appropriate SHPO/THPO, elect to adopt the
        provisions of this Nationwide Agreement. Where a tribe that has
        assumed SHPO functions pursuant to Section 101(d)(2) of the NHPA
        (16 U.S.C. § 470(d)(2)) has agreed to application of this
        Nationwide Agreement on tribal lands, the term SHPO/THPO denotes
        the Tribal Historic Preservation Officer with respect to review
        of proposed Undertakings on those tribal lands. Where a tribe
        that has not assumed SHPO functions has agreed to application of
        this Nationwide Agreement on tribal lands, the tribe may notify
        the Commission of the tribe\'s intention to perform the duties
        of a SHPO/THPO, as defined in this Nationwide Agreement, for
        proposed Undertakings on its tribal lands, and in such instances
        the term SHPO/THPO denotes both the State Historic Preservation
        Officer and the tribe\'s authorized representative. In all other
        instances, the term SHPO/THPO denotes the State Historic
        Preservation Officer.

    E.  This Nationwide Agreement governs only review of Undertakings
        under Section 106 of the NHPA. Applicants completing the Section
        106 review process under the terms of this Nationwide Agreement
        may not initiate construction without completing any
        environmental review that is otherwise required for effects
        other than historic preservation under the Commission\'s rules
        (S*ee* 47 C.F.R. §§ 1.1301-1.1319). Completion of the Section
        106 review process under this Nationwide Agreement satisfies an
        Applicant's obligations under the Commission's rules with
        respect to Historic Properties, except for Undertakings that
        have been determined to have an adverse effect on Historic
        Properties and that therefore require preparation and filing of
        an Environmental Assessment (S*ee* 47 C.F.R. § 1.1307(a)(4)).

    F.  This Nationwide Agreement does not govern any Section 106
        responsibilities that agencies other than the Commission may
        have with respect to those agencies' federal Undertakings.

II. DEFINITIONS

    A.  The following terms are used in this Nationwide Agreement as
        defined below:

1\. Antenna. An apparatus designed for the purpose of emitting radio
frequency ("RF") radiation, to be operated or operating from a fixed
location pursuant to Commission authorization, for the transmission of
writing, signs, signals, data, images, pictures, and sounds of all
kinds, including the transmitting device and any on-site equipment,
switches, wiring, cabling, power sources, shelters or cabinets
associated with that antenna and added to a Tower, structure, or
building as part of the original installation of the antenna. For most
services, an Antenna will be mounted on or in, and is distinct from, a
supporting structure such as a Tower, structure or building. However, in
the case of AM broadcast stations, the entire Tower or group of Towers
constitutes the Antenna for that station. For purposes of this
Nationwide Agreement, the term Antenna does not include unintentional
radiators, mobile stations, or devices authorized under Part 15 of the
Commission\'s rules.

2\. Applicant. A Commission licensee, permittee, or registration holder,
or an applicant or prospective applicant for a wireless or broadcast
license, authorization or antenna structure registration, and the duly
authorized agents, employees, and contractors of any such person or
entity.

3\. Area of Potential Effects ("APE"). The geographic area or areas
within which an Undertaking may have an effect on Historic Properties,
if such properties exist.

4\. Collocation. The mounting or installation of an Antenna on an
existing Tower, building, or structure for the purpose of transmitting
radio frequency signals for telecommunications or broadcast purposes.

5\. Effect. An alteration to the characteristics of a Historic Property
qualifying it for inclusion in or eligibility for the National Register.

6\. Experimental Authorization. An authorization issued to conduct
experimentation utilizing radio waves for gathering scientific or
technical operation data directed toward the improvement or extension of
an established service and not intended for reception and use by the
general public. "Experimental Authorization" does not include an
"Experimental Broadcast Station" authorized under Part 74 of the
Commission\'s rules.

7\. Facility. A Tower or an Antenna. The term Facility may also refer to
a Tower and its associated Antenna(s).

8\. Historic Property. Any prehistoric or historic district, site,
building, structure, or object included in, or eligible for inclusion
in, the National Register maintained by the Secretary of the Interior.
This term includes artifacts, records, and remains that are related to
and located within such properties. The term includes properties of
traditional religious and cultural importance to an Indian tribe or NHO
that meet the National Register criteria.

9\. National Register. The National Register of Historic Places,
maintained by the Secretary of the Interior\'s office of the Keeper of
the National Register.

10\. Special Temporary Authorization. Authorization granted to a
permittee or licensee to allow the operation of a station for a limited
period at a specified variance from the terms of the station\'s
permanent authorization or requirements of the Commission's rules
applicable to the particular class or type of station.

11\. Submission Packet. The document to be submitted initially to the
SHPO/THPO to facilitate review of the Applicant\'s findings and any
determinations with regard to the potential impact of the proposed
Undertaking on Historic Properties in the APE. There are two Submission
Packets: (a) The New Tower Submission Packet (Form NT) (See Attachment
3) and (b) The Collocation Submission Packet (Form CO) (See Attachment
4). Any documents required to be submitted along with a Form are part of
the Submission Packet.

12\. Tower. Any structure built for the sole or primary purpose of
supporting Commission‑licensed or authorized Antennas, including the
on-site fencing, equipment, switches, wiring, cabling, power sources,
shelters, or cabinets associated with that Tower but not installed as
part of an Antenna as defined herein.

B.  All other terms not defined above or elsewhere in this Agreement
    shall have the same meaning as set forth in the Council\'s rules
    section on Definitions (36 C.F.R. § 800.16) or the Commission\'s
    rules (47 C.F.R. §§ 1.1301‑1.1319).

C.  For the calculation of time periods under this Agreement, "days"
    mean "calendar days." Any time period specified in the Agreement
    that ends on a weekend or a Federal or State holiday is extended
    until the close of the following business day.

D.  Written communications include communications by e‑mail or
    facsimile.

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III. UNDERTAKINGS EXCLUDED FROM SECTION 106 REVIEW[^1]

A. Undertakings that fall within the provisions listed in the following
sections III.A.1. through III.A.6 are excluded from Section 106 review
by the SHPO/THPO, the Commission, and the Council, and, accordingly,
shall not be submitted to the SHPO/THPO for review \[unless an Indian
tribe indicates pursuant to Section III.B that a Historic Property of
traditional religious or cultural importance to that tribe may be
adversely affected by the proposed Undertaking\].[^2] Applicants should
retain documentation of their determination that an exclusion applies to
an Undertaking. Concerns regarding the application of these exclusions
from Section 106 review may be presented to and considered by the
Commission pursuant to Section XI.

1\. Modification of a tower and any associated excavation that does not
involve a collocation and does not substantially increase the size of
the existing tower, as defined in the Collocation Agreement.

2\. Construction of a replacement for an existing communications tower
and any associated excavation that does not substantially increase the
size of the existing tower under elements 1-3 of the definition as
defined in the Collocation Agreement (See Attachment 1 to this
Agreement, Stipulation 1.c.1-3) and that does not expand the boundaries
of the leased or owned property surrounding the tower by more than 30
feet in any direction or involve excavation outside these expanded
boundaries and any access or utility easement related to the site.

3\. Construction of any temporary communications Tower, Antenna
structure, or related Facility, including but not limited to the
following:

> a\. A Tower or Antenna authorized by the Commission for a temporary
> period, such as any Facility authorized by a Commission grant of
> Special Temporary Authority ("STA") or emergency authorization;
>
> b\. a cell on wheels (COW) transmission Facility;
>
> c\. a broadcast auxiliary services truck, TV pickup station, remote
> pickup broadcast station (e.g., electronic newsgathering vehicle)
> authorized under Part 74 or temporary fixed or transportable earth
> station in the fixed satellite service (e.g., satellite newsgathering
> vehicle) authorized under Part 25;
>
> d\. a temporary ballast mount Tower involving no excavation;
>
> e\. Any Facility authorized by a Commission grant of an experimental
> authorization.[^3]
>
> For purposes of this subsection 3, the term "temporary" means "for no
> more than twenty-four months duration except in the case of those
> Facilities associated with national security."

4\. Construction of a Facility 400 feet or less in overall height above
ground level on a property that is in actual use solely for industrial,
commercial, and/or government-office purposes and that occupies an area
of 10,000 square feet or more, or that together with adjacent
industrial, commercial, and/or government-office properties occupies an
area of 10,000 square feet or more, where no structure 45 years or older
is located within 200 feet[^4] of the proposed Facility, and where all
areas to be excavated will be located on ground that has been previously
disturbed as defined in Section VI.C.4 below.

5\. Construction of a Facility 400 feet or less in overall height above
ground level located in or within 200 feet of the outer boundary of any
of the following, and where all areas to be excavated will be located on
ground that has been previously disturbed as defined in Section VI.C.4
below.

> a\. A right-of-way designated by a government for the location of
> communications Towers or above-ground utility transmission lines and
> associated structures and equipment, and in active use for such
> purpose;
>
> b\. An existing limited access Interstate Highway with a speed limit
> of 55 MPH or higher; or
>
> c\. A railway corridor in active use for passenger trains;

However, an Undertaking shall not be excluded from review under this
provision if (1) the existing highway, railway line, or communications
structure is included in the National Register and the setting or other
visual element is identified as a character-defining feature of
eligibility on the National Register nomination; (2) the proposed
Facility lies within 200 feet of any other structure that is 45 years or
older; or (3) the proposed Facility lies within 3/4 mile of and is
visible from a unit of the National Park System that is listed or
eligible for listing in the National Register, or a National Historic
Landmark.[^5]

6\. Construction of a facility in any area previously designated by the
SHPO/THPO at its discretion, following consultation with appropriate
tribes, as having limited potential to affect Historic Properties. Such
designation shall be documented and made available for public review.

B. \[Prior to commencing construction of any Facility excluded from
Section 106 review under Section III.A.1, III.A.2., or III.A.4. through
III.A.6, an Applicant shall notify any Indian tribe with aboriginal
and/or historic associations to the area in which the Undertaking is to
occur and provide the tribe a reasonable opportunity to indicate that
the Undertaking may adversely affect a Historic Property of traditional
religious or cultural importance to that tribe. If the tribe indicates
that such an adverse effect may occur, the Applicant shall engage the
tribe pursuant to Section IV and shall review the Undertaking and submit
it to the SHPO/THPO for review under this Nationwide Agreement
notwithstanding the exclusion, unless the tribe subsequently concludes
that the Historic Property would not be adversely affected.\]

\[Section III.B was proposed by the Navajo Nation. Section 101(d)(6)(B)
of the NHPA states that, \"\[i\]n carrying out its responsibilities
under Section 106, a Federal agency shall consult with any Indian tribe
or native Hawaiian Organization that attaches religious and cultural
significance to \[Historic Properties\].\" The Navajo Nation believes
that this proposed provision is a minimum necessary accommodation in
light of Section 101(d)(6)(B).\]

\[CTIA, PCIA and NAB are concerned that the Navajo Nation\'s proposed
language provides additional notice requirements rather than
streamlining excluded Undertakings from review. PCIA argues that from a
practical standpoint, an exclusion that includes a tribal notice
requirement may be tantamount to no exclusion at all. Moreover, these
parties, the Conference, and the Council maintain that this Nationwide
Programmatic Agreement is not the appropriate vehicle to address the
notice issue, but that the Commission in consultation with Indian tribes
should develop agency procedures with respect to tribal consultation.
The Council notes that other programmatic agreements have excluded
Undertakings off tribal lands from review without a provision for tribal
notice. USET states that tribes were not consulted in the development of
those programmatic agreements.\]

\[We seek comment on the Navajo Nation\'s proposal, and on this draft
Nationwide Agreement generally, in light of Section 101(d)(6)(B).\]

IV. PARTICIPATION OF INDIAN TRIBES AND NATIVE HAWAIIAN ORGANIZATIONS IN
    UNDERTAKINGS OFF TRIBAL LANDS; TRIBAL CONSULTATION -- **Alternative
    A**[^6]

    A.  As a part of its responsibilities in connection with Section 106
        of the NHPA (16 U.S.C. 470f) and the regulations of the Council
        (36 C.F.R. Part 800) and pursuant to Section 101(d)(6) of the
        NHPA (16 U.S.C. § 470(a)(d)(6)), the Commission recognizes its
        responsibility to consult with any Indian tribe or NHO that
        attaches religious and cultural significance to a Historic
        Property if the property may be affected by an Undertaking.
        Through its rules and the terms of this Agreement, the
        Commission has authorized Applicants to initiate contacts with
        Indian tribes and NHOs on its behalf, and to conclude the
        process of tribal participation consistent with this Agreement
        where the tribe has not requested government-to-government
        consultation.

    B.  Consistent with their right to government-to-government
        consultation, tribal authorities may request Commission
        consultation on any or all matters at any time, including when
        an Undertaking proposed off tribal lands may affect Historic
        Properties that are of religious and cultural significance to
        that Indian tribe or NHO.

    C.  The Commission recognizes that Indian tribes exercise inherent
        sovereign powers over their members and territory. The
        Commission also recognizes the unique relationship that the
        federal government has with Indian tribes set forth in the
        Constitution of the United States, treaties, statutes, and court
        decisions. Each Applicant must recognize these facts and conduct
        all communications with Indian tribes in a sensitive manner,
        respectful of tribal sovereignty. Contacts shall be directed to
        the appropriate representative designated or identified by the
        tribal government or other governing body.

    D.  Applicants should be aware that frequently, Historic Properties
        of religious and cultural significance to Indian tribes and NHOs
        are located on ancestral, aboriginal, or ceded lands of such
        tribes and organizations and Applicants should take this into
        account when complying with their responsibilities. Accordingly,
        Applicants shall use reasonable and good faith efforts to
        identify any Indian tribe or NHO that may attach religious and
        cultural significance to Historic Properties that may be
        affected by an Undertaking. Such reasonable and good faith
        efforts may include, but are not limited to, seeking relevant
        information from the relevant SHPO/THPO, Indian tribes, state
        agencies, the U.S. Bureau of Indian Affairs ("BIA"), or, where
        applicable, any federal agency with land holdings within the
        state (e.g., the U.S. Bureau of Land Management). Although these
        agencies can provide useful information in identifying
        potentially affected Indian tribes, contacting BIA, the SHPO or
        other federal and state agencies is not a substitute for seeking
        information directly from Indian tribes that may attach
        religious and cultural significance to a potentially affected
        Historic Property, as described below.

    E.  In order to ensure that each identified Indian tribe or NHO has
        a full opportunity to participate in the Section 106 process and
        to request government-to-government consultation, the Applicant
        shall, early in the project planning process, contact in writing
        any Indian tribe or NHO identified pursuant to Section IV.D.
        above. The communication shall include the elements specified in
        Section V.C., below, and offer the Indian tribe or NHO an
        opportunity to provide to the Applicant information about
        Historic Properties in the APE that should be considered and
        included in the Submission Packet. The initial communication
        should explain the Applicant's authority and the tribe's right
        to request government-to-government consultation as outlined in
        Section IV.A. and B above.

    F.  The Applicant must ensure that each identified Indian tribe or
        NHO has a reasonable opportunity to respond to its
        communication. Ordinarily, 30 days from the time the relevant
        tribal representative may reasonably be expected to have
        received an inquiry shall be considered a reasonable time, and
        in no event shall a reasonable time be less than 30 days unless
        otherwise agreed by a tribe. Should the tribe request additional
        time to respond, the Applicant shall afford additional time as
        reasonable under the circumstances. Notification to the
        Applicant of the need for additional time should be made, where
        practical, at least 5 days prior to the close of the initial
        30-day period. In general, an Applicant should not assume that
        failure to respond to a single communication establishes that an
        Indian tribe or NHO is not interested in participating, but
        should make reasonable efforts to follow up. Such efforts may
        include, for example, an additional attempt at written
        communication, provision of the Submission Packet at the time it
        is submitted to the SHPO/THPO, and/or, where practical, contact
        by telephone.[^7]

    G.  If the Applicant receives a comment or objection from an Indian
        tribe or NHO regarding Historic Properties, the Applicant shall
        pursue further discussions with the tribe, unless the tribe
        requests consultation with the Commission. All requests for
        government-to-government consultation shall be immediately
        forwarded to the Commission. If the Applicant receives a comment
        from an Indian tribe or NHO, it shall invite the commenting
        tribe or organization to become a consulting party. If the
        Indian tribe or NHO agrees to become a consulting party, it
        shall be afforded that status and shall be provided with all of
        the information, copies of submissions, and other prerogatives
        of a consulting party as provided for in 36 C.F.R. § 800.2.

    H.  The Applicant shall submit to each Indian tribe and NHO that it
        has identified pursuant to Section IV.D., above, or that has
        informed the SHPO/THPO, the Applicant or the Commission that it
        attaches religious and cultural significance to a Historic
        Property within the APE, a Submission Packet as provided in
        Section VII.A. Such submission is not necessary where the Indian
        tribe or NHO has previously made clear that it does not believe
        any Historic Property of religious and cultural significance to
        it may potentially be affected or has failed to respond to
        repeated attempts at communication.

    I.  In the event an Applicant and an Indian tribe or NHO are unable
        to agree regarding a tribe's assertion prior to construction of
        an adverse effect on a Historic Property of religious and
        cultural significance to that tribe, the Applicant shall not
        commence construction without authorization from the Commission.
        The Commission, in consultation with the tribe, shall carefully
        consider all positions and rule on all such disagreements with
        reasonable promptness.

    J.  Information regarding Historic Properties to which Indian tribes
        attach religious and cultural significance may be highly
        confidential, private, and sensitive. If a tribe or NHO requests
        confidentiality from the Applicant, the Applicant shall honor
        this request and shall, in turn, request confidential treatment
        of such materials or information in accordance with Section 304
        of the NHPA (16 U.S.C. § 470w-3(a)) in the event they are
        submitted to the Commission. The Commission shall provide such
        confidential treatment consistent with applicable federal
        laws.[^8]

    K.  Nothing in this Section shall be construed to prohibit or limit
        Applicants and Indian tribes from entering into or continuing
        pre-existing arrangements or agreements governing their
        contacts, provided such arrangements or agreements are otherwise
        consistent with federal law.

IV\. PARTICIPATION OF INDIAN TRIBES AND NATIVE HAWAIIAN ORGANIZATIONS IN
UNDERTAKINGS OFF TRIBAL LANDS -- **Alternative B**[^9]

A. The Commission recognizes its responsibility to initiate and carry
out consultation with any Indian tribe or NHO that attaches religious
and cultural significance to a Historic Property if the property may be
affected by a Commission undertaking. This responsibility is founded in
Sections 101(d)(6)(a-b) and 106 of the NHPA (16 U.S.C. §§
470a(d)(6)(a-b) and 470f), the regulations of the Council (36 C.F.R.
Part 800), the Commission's environmental regulations (47 C.F.R. §§
1.1301-1.1319), and the unique legal relationship that exists between
the federal government and Indian Tribal governments, as reflected in
the Constitution of the United States, treaties, federal statutes,
Executive orders, and numerous court decisions. This historic trust
relationship requires the federal government to adhere to certain
fiduciary standards in its dealings with Indian Tribes. (*Commission
Statement of Policy on Establishing a Government-to-Government
Relationship with Indian Tribes*).

B. Except as provided in Section IV.C. below, the Commission shall
engage in direct and meaningful consultation with an Indian tribe or NHO
when an Undertaking proposed off tribal lands may affect Historic
Properties that are of religious and cultural significance to that
Indian tribe or NHO. Such consultation shall be carried out in
accordance with the regulations adopted by the Advisory Council on
Historic Preservation implementing Section 106 of the NHPA (codified at
36 C.F.R. Part 800). Notwithstanding the foregoing, the Commission
encourages the use of the alternative process set forth in Paragraph C
as an effective way of addressing the concerns of Applicants and Indian
Tribes or NHOs that generally will be faster than
government-to-government consultation between the Commission and Indian
tribes or NHOs.

C. The Commission shall not be required to engage in consultation with
an Indian tribe or NHO where an Applicant has secured a letter of
certification from that Indian tribe or NHO stating that such
consultation is unnecessary because either: (1) the tribe or NHO has no
interest in the affected property; or (2) the Undertaking will not have
an adverse effect on a Historic Property of religious and cultural
significance to that tribe or NHO. Where a tribe or NHO believes that a
proposed Undertaking would have an adverse effect on a property of
religious and cultural significance to that tribe or NHO and the
Applicant wishes to pursue mitigation, the tribe or NHO may, at its
discretion, discuss mitigation directly with the Applicant consistent
with Section VII.D. Alternatively, consultation shall not be required if
a written agreement between the Applicant and the tribe or NHO that has
been filed with the Commission provides that the tribe or NHO will be
deemed to have determined that Commission consultation is unnecessary if
the Applicant has provided certain information and the tribe or NHO has
not responded within a certain period of time, and the Applicant has
fulfilled the terms of that agreement. \[Additional guidance in
implementing this paragraph would be provided either in an appendix or
by separate publication\]

V.  PUBLIC PARTICIPATION AND CONSULTING PARTIES

    A.  On or before the date an Applicant submits the appropriate
        Submission Packet to the SHPO/THPO, as prescribed by Section
        VII, below, the Applicant shall provide the local government
        that has primary land use jurisdiction over the site of the
        planned Undertaking with written notification of the planned
        Undertaking.

    B.  On or before the date an Applicant submits the appropriate
        Submission Packet to the SHPO/THPO, as prescribed by Section
        VII, below, the Applicant shall provide written notice to the
        public of the planned Undertaking. Such notice may be
        accomplished (1) through the public notification provisions of
        the relevant local zoning or local historic preservation process
        for the proposed Facility; or (2) by publication in a local
        newspaper of general circulation. In the alternative, an
        Applicant may use other appropriate means of providing public
        notice, including seeking the assistance of the local
        government.

    C.  The written notice to the local government and to the public
        shall include: (1) the location of the proposed Facility
        including its street address; (2) a description of the proposed
        Facility including its height and type of structure;
        (3) instruction on how to submit comments regarding potential
        effects on Historic Properties; and (4) the name, address, and
        telephone number of a contact person.

    D.  A SHPO/THPO may make available lists of other groups, including
        tribes and organizations of tribes, which should be provided
        notice for Undertakings to be located in particular areas.

    E.  If the Applicant receives a comment regarding potentially
        affected Historic Properties, the Applicant shall consider the
        comment and either include it in the initial submission to the
        SHPO/THPO, or, if the initial submission has already been made,
        immediately forward the comment to the SHPO/THPO for review. An
        Applicant need not submit to the SHPO/THPO any comment that does
        not substantially relate to potentially affected Historic
        Properties.

    F.  The relevant SHPO/THPO, local government, and Indian tribes and
        NHOs that attach religious and cultural significance to Historic
        properties that may be affected are entitled to be consulting
        parties in the Section 106 review of an Undertaking. The Council
        may enter the Section 106 process for a given Undertaking, on
        invitation or on its own decision, according to its rules. An
        Applicant shall consider all written requests of other
        individuals and organizations to participate as consulting
        parties and determine which should be consulting parties. An
        Applicant is encouraged to grant such status to individuals or
        organizations with a demonstrated legal or economic interest in
        the Undertaking, or demonstrated expertise or standing as a
        representative of local or public interest in historic or
        cultural resources preservation. Any such individual or
        organization denied consulting party status may petition the
        Commission for review of such denial. Applicants may seek
        assistance from the Commission in identifying and involving
        consulting parties. [^10] [^11]

    G.  Consulting parties are entitled to: (1) receive notices, copies
        of submission packets, correspondence and other documents
        provided to the SHPO/THPO in a Section 106 review; and (2) be
        provided an opportunity to have their views expressed and taken
        into account by the Applicant, the SHPO/THPO and, where
        appropriate, by the Commission.

VI. IDENTIFICATION, EVALUATION, AND ASSESSMENT OF EFFECTS

    In preparing the Submission Packet for the SHPO/THPO pursuant to
    Section VII of this Nationwide Agreement and Attachments 3 and 4,
    the Applicant must: (1) define the area of potential effects
    (APE); (2) identify Historic Properties within the APE; (3) evaluate
    the historic significance of identified properties; and (4) assess
    the effects of the Undertaking on Historic Properties. The standards
    described below shall be applied by the Applicant in preparing the
    Submission Packet, by the SHPO/THPO in reviewing the Submission
    Packet, and where appropriate, by the Commission in making findings.

    Identification, evaluation, and assessment are most expeditiously
    accomplished by individuals with historic preservation and cultural
    resource management expertise and experience.

    A.  Consideration of Direct Effects and Visual Effects

A SHPO/THPO, consistent with relevant state procedures, may specify
geographic areas in which no review for direct effects on archeological
resources is required or in which no review for visual effects is
required.

B.  Definition of the Area of Potential Effects

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1.  Direct Effects

> The APE for direct effects is limited to the area of potential ground
> disturbance and the portion of any Historic Property that will be
> destroyed or physically altered by the Undertaking.

2.  Visual Effects

> a\. Unless otherwise established in consultation with the SHPO/THPO,
> the presumed APE for visual effects for the construction of new
> Facilities is the area from which the tower will be visible:
>
> 1\) Within a half mile of the proposed tower, if the proposed tower is
> 200 feet or less in overall height;
>
> 2\) Within 3/4 mile of the proposed tower, if the proposed tower is
> more than 200 feet but no more than 400 feet in overall height;
>
> 3\) Within 1 ½ miles of the proposed tower, if the proposed tower is
> more than 400 feet in overall height. [^12]
>
> b\. In the event the Applicant determines, or the SHPO/THPO
> recommends, that an alternative APE for visual effects is necessary,
> the Applicant and the SHPO/THPO may mutually agree to an alternative
> APE.
>
> c\. If the parties, after using good faith efforts, cannot reach
> agreement on the use of an alternative APE, either the Applicant or
> the SHPO/THPO may submit the issue to the Commission for resolution.
> The Commission shall make its determination concerning an alternative
> APE within a reasonable period of time.

A.  Identification of Historic Properties

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1.  The Applicant, using research techniques and employing methodology
    generally acceptable to the preservation profession and considering
    public comments, shall identify Historic Properties in the APE,
    including Historic Properties to which any Indian tribe or NHO
    attaches religious or cultural significance.

2.  The level of effort and the appropriate nature and extent of
    identification efforts will vary depending on the location of the
    project, the likely nature and location of Historic Properties
    within the APE, and the current nature of and thoroughness of
    previous research, studies, or Section 106 reviews.

3.  No archeological survey shall be required if the Undertaking is
    unlikely to cause direct effects to archeological sites.
    Disagreements regarding the necessity for an archeological survey
    may be referred to the Commission for resolution.

4.  It may be assumed that no archeological resources exist within the
    APE where all areas to be excavated related to the proposed Facility
    will be located on ground that has been previously disturbed to a
    depth of (1) two feet or (2) six inches deeper than the general
    depth of the anticipated disturbance (excluding footings and similar
    limited areas of deep excavation), whichever is greater, and where
    no archeological resources are recorded in files of the SHPO/THPO or
    any potentially affected Indian tribe or NHO.

    A.  Evaluation of Historic Significance

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1.  The Applicant shall apply the National Register criteria (36 C.F.R.
    Part 63) to properties identified within the APE and request
    SHPO/THPO concurrence as part of the review of the Submission
    Packet.

2.  Where there is a disagreement regarding the eligibility of a
    resource for listing in the National Register and, after attempting
    in good faith to resolve the issue, the Applicant and the SHPO/THPO
    continue to disagree regarding eligibility, the Applicant may submit
    the issue to the Commission. The Commission shall handle such
    submissions in accordance with 36 C.F.R. § 800.4(c)(2).

    A.  Evaluation of Effects

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1.  Applicants shall evaluate effects of the Undertaking on Historic
    Properties using the Criteria of Adverse Effect
    (36 C.F.R. § 800.5(a)(1)).

2.  In determining whether Historic Properties in the APE may be
    adversely affected by the Undertaking, the Applicant should consider
    factors such as the topography, vegetation, known presence of
    Historic Properties (including locally designated historic districts
    and traditional cultural properties), and existing land use.

3.  An Undertaking will have a visual adverse effect on a Historic
    Property if the visual effect from the Facility will noticeably
    diminish the integrity of one or more of the characteristics
    qualifying the property for inclusion in or eligibility for the
    National Register. Construction of a Facility will not cause a
    visual adverse effect except where visual setting or visual elements
    are character-defining features of eligibility. Examples
    include: (1) a designed landscape which includes scenic vistas, (2)
    a publicly interpreted Historic Property where the setting or views
    are part of the interpretation, (3) a traditional cultural property
    which includes qualifying natural landscape elements, or (4) a rural
    historic landscape.[^13]

4.  For collocations not excluded from review by the Collocation
    Agreement or this Agreement, the assessment of effects will consider
    only effects from the newly added or modified Facilities and not
    effects from the existing Tower or Antenna.

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VII. PROCEDURES

     A.  Use of the Submission Packet

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1.  For each Undertaking within the scope of this Nationwide Agreement,
    the Applicant shall initially determine whether there are no
    Historic Properties affected, no adverse effect on Historic
    Properties, or an adverse effect on Historic Properties. The
    Applicant shall prepare a Submission Packet and submit it, together
    with the required documentation, to the SHPO/THPO and to all
    consulting parties, including any Indian tribe or NHO that is
    participating as a consulting party.[^14]

2.  The SHPO/THPO shall have 30 days from receipt of the requisite
    documentation to review the Submission Packet.

3.  If the Applicant forwards to the SHPO/THPO a comment or objection,
    in accordance with Section V.F, more than 25 but less than 31 days
    following its initial submission, the SHPO/THPO shall have five
    calendar days to consider such comment or objection before the
    Section 106 process is complete or the matter may be submitted to
    the Commission.

4.  If the SHPO/THPO determines the Applicant's Submission Packet is
    inadequate, the SHPO/THPO will immediately return it to the
    Applicant with a description of any deficiencies. The Applicant may
    resubmit an amended Submission Packet to the SHPO/THPO any time
    within 60 days following its receipt of the returned Submission
    Packet.[^15]

    A.  Determinations of No Historic Properties Affected

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1.  If the SHPO/THPO concurs in writing with the Applicant's
    determination of no Historic Properties affected, it is deemed that
    no Historic Properties exist within the APE or the Undertaking will
    have no effect on any Historic Properties located within the APE.
    The Section 106 process is then complete, and the Applicant may
    proceed with the project, unless further processing for reasons
    other than Section 106 is required.

2.  If the SHPO/THPO does not provide written notice to the Applicant
    that it agrees or disagrees with the Applicant\'s determination of
    no Historic Properties affected within 30 days following receipt of
    a complete Submission Packet, it is deemed that no Historic
    Properties exist within the APE and the Undertaking will have no
    effect on Historic Properties. The Section 106 process is then
    complete and the Applicant may proceed with the project, unless
    further processing for reasons other than Section 106 is required.

3.  If the SHPO/THPO provides written notice within 30 days following
    receipt of the Submission Packet that it disagrees with the
    Applicant\'s determination of no Historic Properties affected, it
    should provide a short and concise explanation of exactly how the
    criteria of eligibility and or criteria of Adverse Effect would
    apply. The Applicant and the SHPO/THPO should engage in further
    discussions and make a reasonable and good faith effort to resolve
    their disagreement.

4.  If the SHPO/THPO and Applicant do not resolve their disagreement,
    the Applicant may at any time choose to submit the matter, together
    with all relevant documents, to the Commission, advising the
    SHPO/THPO accordingly.

    A.  Determinations of No Adverse Effect

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1.  If the SHPO/THPO concurs in writing with the Applicant\'s
    determination of no adverse effect, the Facility is deemed to have
    no adverse effect on Historic Properties. The Section 106 process is
    then complete and the Applicant may proceed with the project, unless
    further processing for reasons other than Section 106 is required.

2.  If the SHPO/THPO does not provide written notice to the Applicant
    that it agrees or disagrees with the Applicant's determination of no
    adverse effect within thirty days following its receipt of a
    complete Submission Packet, the SHPO/THPO is presumed to have
    concurred with the Applicant's determination. The Applicant shall,
    pursuant to procedures to be promulgated by the Commission, forward
    a copy of its Submission Packet to the Commission, together with all
    correspondence with the SHPO/THPO and any comments or objections
    received from the public, and advise the SHPO/THPO accordingly. The
    Section 106 process shall then be complete unless the Commission
    notifies the Applicant otherwise within a period of time to be
    specified by the Commission.

3.  If the SHPO/THPO provides written notice within 30 days following
    receipt of the Submission Packet that it disagrees with the
    Applicant\'s determination of no adverse effect, it should provide a
    short and concise explanation of exactly how the criteria of Adverse
    Effect would apply. The Applicant and the SHPO/THPO should engage in
    further discussions and make a reasonable and good faith effort to
    resolve their disagreement.

4.  If the SHPO/THPO and Applicant do not resolve their dispute, the
    Applicant may at any time choose to submit the matter, together with
    all relevant documents, to the Commission, advising the SHPO/THPO
    accordingly.

5.  Whenever the Applicant or the Commission concludes, or a SHPO/THPO
    advises, that a proposed project will have an adverse effect on a
    Historic Property, after applying the criteria of Adverse Effect,
    the Applicant and the SHPO/THPO are encouraged to investigate
    measures that would avoid the adverse effect and permit a
    conditional "No Adverse Effect" determination.[^16]

6.  If the Applicant and SHPO/THPO mutually agree upon conditions that
    will result in no adverse effect, the Applicant shall advise the
    SHPO/THPO in writing that it will comply with the conditions. The
    Applicant can then make a determination of no adverse effect subject
    to its implementation of the conditions. The Undertaking is then
    deemed conditionally to have no adverse effect on Historic
    Properties, and the Applicant may proceed with the project subject
    to those conditions. Where the Commission has previously been
    involved in the matter, the Applicant shall notify the Commission of
    this resolution.[^17]

    A.  Determinations of Adverse Effect

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1.  If the Applicant determines at any stage in the process that an
    Undertaking would have an adverse effect on Historic Properties
    within the APE(s), or if the Commission so finds, the Applicant
    shall submit to the SHPO/THPO a plan designed to avoid, minimize, or
    mitigate the adverse effect.

2.  The Applicant shall forward a copy of its submission with its
    mitigation plan and the entire record to the Council and the
    Commission. Within fifteen days following receipt of the
    Applicant\'s submission, the Council shall indicate whether it
    intends to participate in the negotiation of a Memorandum of
    Agreement by notifying both the Applicant and the Commission.

3.  Where the Undertaking would have an adverse effect on a National
    Historic Landmark, the Commission shall request the Council to
    participate in consultation and shall invite participation by the
    Secretary of the Interior.

4.  The Applicant, SHPO/THPO, and consulting parties shall negotiate a
    Memorandum of Agreement that shall be sent to the Commission for
    review and execution.

5.  If the parties are unable to agree upon mitigation measures, they
    shall submit the matter to the Commission, which shall coordinate
    additional actions in accordance with the Council's rules, including
    36 C.F.R. §§ 800.6(b)(1)(v) and 800.7.[^18]

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VIII. EMERGENCY SITUATIONS

Unless the Commission deems it necessary to issue an emergency
authorization in accordance with its rules, or the Undertaking is
otherwise excluded from Section 106 review pursuant to Section III of
this Agreement, the procedures in this Agreement shall apply.

IX. INADVERTENT OR POST‑REVIEW DISCOVERIES

    A.  In the event that an Applicant discovers a previously
        unidentified site within the APE that may be a Historic Property
        that would be affected by an Undertaking, the Applicant shall
        promptly notify the Commission, the SHPO/THPO and any
        potentially affected Indian tribe or NHO, and within a
        reasonable time shall submit to the Commission, the SHPO/THPO
        and any potentially affected Indian tribe or NHO, a written
        report evaluating the property's eligibility for inclusion in
        the National Register. The Applicant shall seek the input of any
        potentially affected Indian tribe or NHO in preparing this
        report. If found during construction, construction must cease
        until evaluation has been completed.

    B.  If the Applicant and SHPO/THPO concur that the discovered
        resource is eligible for listing in the National Register, the
        Applicant will consult with the SHPO/THPO, and tribes as
        appropriate, to evaluate measures that will avoid, minimize, or
        mitigate adverse effects. Upon agreement regarding such
        measures, the Applicant shall implement them and notify the
        Commission of its action.

    C.  If the Applicant and SHPO/THPO cannot reach agreement regarding
        the eligibility of a property, the matter will be referred to
        the Commission for review in accordance with Section VI.D.2. If
        the Applicant and the SHPO/THPO cannot reach agreement on
        answers to avoid, minimize, or mitigate adverse effects, the
        matter shall be referred to the Commission for appropriate
        action.

    D.  If the Applicant discovers any human or burial remains during
        implementation of an Undertaking, the Applicant shall cease work
        immediately, notify the SHPO/THPO and Commission, and adhere to
        applicable State and Federal laws regarding the treatment of
        human or burial remains.

X.  CONSTRUCTION PRIOR TO COMPLIANCE WITH SECTION 106

    A.  The terms of Section 110(k) of the National Historic
        Preservation Act (16 U.S.C. § 470h-2(k)) ("Section 110(k)")
        apply to Undertakings covered by this Agreement. Any SHPO/THPO,
        potentially affected Indian tribe or NHO, the Council, or a
        member of the public may submit a complaint to the Commission
        alleging that a facility has been constructed or partially
        constructed after the effective date of this Agreement in
        violation of Section 110(k). Any such complaint must be in
        writing and supported by substantial evidence specifically
        describing how Section 110(k) has been violated. Upon receipt of
        such complaint the Commission will assume responsibility for
        investigating the applicability of Section 110(k) in accordance
        with the provisions herein.

    B.  If upon its initial review, the Commission concludes that a
        complaint on its face demonstrates a probable violation of
        Section 110(k), the Commission will immediately notify and
        provide the relevant Applicant with copies of the Complaint and
        order that all construction of a new tower or installation of
        any new collocations immediately cease and remain suspended
        pending the Commission's resolution of the complaint.

    C.  Within 15 days of receipt, the Commission will review the
        complaint and take appropriate action, which the Commission may
        determine, and which may include the following:

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1.  Dismiss the complaint without further action if the complaint does
    not make out a probable violation of Section 110(k) even if the
    allegations are taken as true;

2.  Provide the Applicant with a copy of the complaint and request a
    written response within a reasonable time;

3.  Request a background report which documents the history and
    chronology of the planning and construction of the Facility;

4.  Request a summary of the steps taken to comply with the requirements
    of Section 106 as set forth in this Nationwide Agreement,
    particularly the application of the Criteria of Adverse Effect;

5.  Request copies of any documents regarding the planning or
    construction of the Facility, including correspondence, memoranda,
    and agreements;

6.  If the Facility was constructed prior to complying with the
    requirements of Section 106, request an explanation for such
    failure, and possible measures that can be taken to mitigate any
    resulting adverse effects on Historic Properties.

    A.  If the Commission concludes that there is a probable violation
        of Section 110(k) (*i.e.,* that "with intent to avoid the
        requirements of Section 106, \[an Applicant\] has intentionally
        significantly adversely affected a Historic Property")[^19], the
        Commission shall notify the Applicant and forward a copy of the
        documentation set forth in Stipulation X.C. to the SHPO/THPO,
        Council, and other consulting parties along with the
        Commission's opinion regarding the violation of Section 110(k).
        The Commission will consider the views of the consulting parties
        in determining a resolution, which may include negotiating a
        Memorandum of Agreement (MOA) that will resolve any adverse
        effects. The Commission, SHPO/THPO, Council, and Applicant shall
        sign the MOA to evidence acceptance of the mitigation plan and
        conclusion of the Section 106 review process.

    B.  Nothing in Section X or any other provision of this Agreement
        shall preclude the Commission from continuing or instituting
        enforcement proceedings under the Communications Act and its
        rules against an Applicant that has constructed a Facility prior
        to completing required review under this Agreement. Sanctions
        for violations of the Commission's rules may include any
        sanctions allowed under the Communications Act and the
        Commission's rules.

    C.  The Commission shall provide copies of all concluding reports or
        orders for all Section 110(k) investigations conducted by the
        Commission to the original complainant, the relevant local
        government, and other consulting parties.

    D.  Facilities that are excluded from Section 106 review pursuant to
        the Collocation Agreement or Stipulation III of this Agreement
        are not subject to review under this provision. Any parties who
        allege that such Facilities have violated Section 110(k) should
        notify the Commission in accordance with the provisions of
        Stipulation XI, Public Comments and Objections.

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XI. PUBLIC COMMENTS AND OBJECTIONS

Any member of the public may notify the Commission of concerns it has
regarding the application of this Nationwide Agreement within a State or
with regard to the review of individual Undertakings covered or excluded
under the terms of this Agreement. Comments related to
telecommunications activities shall be directed to the Wireless
Telecommunications Bureau and those related to broadcast facilities to
the Media Bureau. The Commission will consider public comments and
following consultation with the SHPO/THPO, potentially affected Indian
tribes and NHOs, or Council, where appropriate, take appropriate
actions. The Commission shall notify the objector of the outcome of its
actions.

XII. AMENDMENTS

The signatories may propose modifications or other amendments to this
Agreement. Any amendment to this Agreement shall be subject to
appropriate public notice and comment and shall be signed by the
Commission, the Council, and the Conference.

XIII. TERMINATION

      A.  Any signatory to this Agreement may request termination by
          written notice to the other parties. Within sixty (60) days
          following receipt of a written request for termination from a
          signatory, all other signatories shall discuss the basis for
          the termination request and seek agreement on amendments or
          other actions that would avoid termination.

      B.  In the event that this Agreement is terminated, the Commission
          and all Applicants shall comply with the requirements of 36
          C.F.R. Part 800.

XIV. ANNUAL REVIEW

The signatories to this Nationwide Agreement will meet annually on or
about the anniversary of the effective date of the Agreement 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.

XV. 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
Act or its implementing regulations contained in 36 C.F.R. Part 800.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective authorized officers as of the day and year
first written above.

FEDERAL COMMUNICATIONS COMMISSION\
\
\
Date\
Chairman

ADVISORY COUNCIL ON HISTORIC PRESERVATION\
\
\
Date\
Executive Director

NATIONAL CONFERENCE OF STATE HISTORIC PRESERVATION OFFICERS\
\
\
­­­­­­­­­­­­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Date \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

President

[^1]: In general, Cellular Telecommunications and Internet Association,
    ("CTIA"), Personal Communications Industry Association ("PCIA") and
    National Association of Broadcasters ("NAB") are concerned that
    exclusions should not become so diluted or convoluted as to render
    them ineffective as streamlining measures. CTIA is particularly
    concerned that proposed language that directly or indirectly results
    in an exemption to the exclusion would result in a lengthy Section
    106 review process.

[^2]: *See* bracketed discussion at the end of Section III.

[^3]: The Commission requests comment on whether experimental
    authorizations should be limited to 24 months.

[^4]: The Ohio SHPO suggests a distance of 400 feet or, alternatively, a
    distance equal to the height of the proposed Facility.

[^5]: The Conference has proposed a modification to Section III.A.5 that
    would allow individual SHPOs to \"opt out\" of this exclusion where
    historic properties are likely to be present in such corridors. SHPO
    opt out would be contingent on agreement to consult with applicants
    and engage in good faith efforts to identify alternate locations for
    the location of communications facilities pursuant to Section
    III.A.6. The National Trust is in support of the Conference draft
    \"opt-out\" language for railway corridors in active use for
    passenger trains. CTIA objects to an opt-out provision because it
    reverts back to addressing key exclusions on a state-by-state basis
    with no guarantees that the parties will reach consensus. CTIA also
    expressed its concern that the proposed opt-out provision would
    result in an additional 12-18 month negotiation process with each
    state that chooses to opt out in addition to what has already been a
    lengthy process, i.e., two years.

[^6]: This alternative was discussed in the Telecommunications Working
    Group and represents the collective effort of Working Group members,
    including tribal representatives, to address issues raised in the
    Working Group discussions. The Working Group did not have an
    opportunity to address the proposal in Alternative B prior to
    publication for comment.

[^7]: PCIA has expressed concern that this paragraph is difficult to
    apply and understand because its timing is indefinite. The
    Conference believes the Programmatic Agreement should not add
    deadlines to those already in 36 C.F.R. Part 800.

[^8]: The Conference notes that "The confidentiality provision in the
    National Historic Preservation Act is equally applicable to all
    historic properties not just traditional cultural properties. The
    reasons for withholding information are significant invasion of
    privacy, risk of harm to the resource and impeding the use of a
    traditional cultural property." The Council proposes that this
    provision be revised to read as follows: "If a Tribe or Native
    Hawaiian Organization requests confidentiality from the Applicant,
    the Applicant shall notify the Commission. The Commission shall
    honor this request and shall, in turn, request confidential
    treatment of such materials or information consistent with
    applicable Federal laws." USET states that confidentiality is of
    central importance to tribes and that confidentiality restrictions
    should be in place on Applicants whether or not a tribe or NHO has
    requested confidentiality.

[^9]: This alternative is proposed by the United South and Eastern
    Tribes, Inc. USET argues that Alternative A is an unlawful
    delegation to non-governmental entities of the Commissions's
    obligation under both Section 101(d)(6) and the Federal trust
    responsibility to consult with tribes. USET proposes Alternative B
    as a practical solution to this problem that maintains the
    Commission's consultation obligation, addresses the concerns of
    industry in a timely manner, and enables tribes to provide their
    expertise for the identification and evaluation of sites thus
    contributing to the appropriate preservation of those sites of value
    to tribes. USET states that it is committed to supporting
    implementation of Alternative B in a practical manner that works for
    all parties.

[^10]: The Conference, the Ohio SHPO, and Verizon Wireless suggest that
    this section be amended to specify a period for public and local
    government response.

[^11]: CTIA has concerns regarding consulting parties' treatment of
    confidential and proprietary information that may be included in an
    Applicant's Submission Packet. Accordingly, CTIA strongly recommends
    including a confidentiality clause binding upon all Parties. The
    Ohio SHPO believes there should not be a blanket provision for the
    confidentiality of "proprietary" information on the part of the
    carriers, since information regarding their consideration of
    alternative sites is invaluable to the SHPO where there are historic
    properties present and there is a need to look for ways to avoid or
    reduce effects. The Ohio SHPO states that this provision would be
    especially problematic for SHPOs that are subject to strong
    state-level FOIA requirements.

[^12]: The Conference asks the following be added: "4) For proposed
    Facilities 1,000 feet or taller, the applicant shall, in
    consultation with the SHPO, determine the APE for each Facility."
    The National Trust concurs with this request.

[^13]: PCIA suggests the following language: "...Construction of a
    Facility will not cause a visual adverse effect except where the
    Facility noticeably diminishes the visual elements of setting,
    feeling or association within the boundary of a Historic Property,
    where such elements are important elements of that historic
    property's eligibility. Examples include Facilities located within
    the actual, or, for unlisted properties, the most logical or
    reasonable boundary of: (1) a designed landscape which includes
    scenic vistas, (2) a publicly interpreted Historic Property where
    the setting or views are part of the interpretation, (3) a
    traditional cultural property which includes qualifying natural
    landscape elements, or (4) a rural historic landscape."

[^14]: PCIA would add following this paragraph: "Any consulting party
    may, within the 30-day review period provided below, submit to the
    Applicant a description of its reasons for disagreement. The
    Applicant may consult with the party to resolve the disagreement or
    ask the Commission to review the finding to which objection is
    made."

[^15]: CTIA and PCIA recommend language that specifically states when
    the 30-day period is tolled and when and if the clock restarts with
    respect to the 30-day review period. PCIA would eliminate the 60-day
    limit on resubmissions, and would provide for Commission resolution
    of disputes regarding the adequacy of a submission.

[^16]: The Council would like to change "encourage" to "shall" and USET
    agrees. Verizon Wireless disagrees with the Council and USET.

[^17]: PCIA suggests permitting the Commission to make its own
    determinations with respect to conditional no adverse effect when
    the SHPO and Applicant cannot agree.

[^18]: CTIA requests specific time estimates for completing activities
    in VII.D.1-5.

[^19]: PCIA suggests that a complete statement of Section 110(k) is
    preferable to a synopsis or incomplete statement.